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From the original by Gilbert Stuart after the engraving of H. B. Ball, Jr. 



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JAMES MADISON'S NOTES 
OF DEBATES 

IN THE 

FEDERAL CONVENTION OF 1787 

AND THEIR RELATION TO A MORE PER- 
FECT SOCIETY OF NATIONS 



K 



BY 



JAMES BROWN SCOTT 

Technical Delegate of the United States to the Second Hague Peace 

Conference ; Member of the Institute of International Law ; 

President of the American Institute of International Law 



NEW YORK 

OXFORD UNIVERSITY PRESS 

AMERICAN BRANCH: 35 WEST 32ND Street 
LONDON, TORONTO, MELBOURNE, AND BOMBAY 

1918 



THE NEW YORK 
PUBLIC LIBRARY 

TILDEN FOUNDATIONS 
R 1919 

^^cm,— mi — m 

Copyright, iqi8 

by Oxford University Press 

american branch 



TO 

ARTHUR DEERIN CALL 

THIS LITTLE BOOK IS AFFECTIONATELY 
INSCRIBED 



" Now a new strain, a new impulse, the strain and impulse of those 
who build and make good what they have achieved, was upon the leaders 
of the young States, and they spoke their chastened thought like mas- 
ters." (Woodrow Wilson, A History of the American People, Ch. 
II, " Founding a Federal Government," Vol. Ill, p. 82, 1901.) 



" What we seek is the reign of law, based upon the consent of the 
governed and sustained by the organized opinion of mankind." (Presi- 
dent Wilson's Address of July 4, 1918, delivered at Mount Vernon.) 



PREFACE 

For years past the writer of this little book has 
been of the opinion that the Federal Convention of 
the States which formed the Constitution of the 
United States was in fact as well as in form an 
international conference. For this reason he is 
firmly convinced that the proceedings of the Con- 
vention are therefore of interest in this day of inter- 
national conferences, as showing the steps by 
which the thirteen States of the western world, 
claiming to be sovereign, free and independent, 
were able to form the one large, successful and 
enduring union of States to be found in the annals 
of history. 

Whether the Society of Nations will care to 
form a more perfect union of its members is for 
them alone to decide, but if they should care to 
strengthen the bonds that unite them and con- 
sciously to form an international organization, in 
which the States shall recognize their interdepen- 
dence as well as their independence, Mr. Madison's 
Notes of the proceedings of the Federal Conven- 
tion of 1787, in which that happy result was 
achieved, should be mastered and the experience 
of the United States under the more perfect union 
be taken into consideration. 

In this connection it may be added that an edi- 
tion of Mr. Madison's Notes, prepared by Mr. 



viii Preface 

Galliard Hunt and the undersigned, is in press, to 
which have been prefixed and appended the var- 
ious documents requisite for a correct understand- 
ing of the nature and labors of the gathering, and 
which establish without argument or comment its 
international character, and its international value. 

James Brown Scott, 

Washington, D. C. 
November n, 1918. 



TABLE OF CONTENTS 



Quotations from Woodrow Wilson 

Preface 

James Madison — Tabula Vitae 

Bibliography of the Notes 

The Colossal Task 

A significant record of a significant event 

Scope of this inquiry 

Mr. Madison and his qualifications 

Mr. Madison's own evidence 

His infinite patience and accuracy 

Origin of the Conference 
The prevailing anxiety 
Specific difficulties 
Alternatives .... 
The regulation of commerce 
Meeting at Alexandria 
At Annapolis 
Call of the Convention 

Accomplishing the Impossible 
The impossible task 
President and Secretary 
Credentials .... 
Committee on rules and orders 
Vote by States .... 
Election of committees by ballot 
Significance for Society of Nations 



PAGE 

vi 

vii 

XV 

xvii 

i 
i 
3 
4 

5 

7 

13 
13 
14 

16 

17 
i7 
18 

19 

19 

20 
21 
22 
22 
22 
23 
23 



Table of Contents 



General Interests . 

The more serious problems presented by the Articles of 

Confederation .... 
Impotence of the central authority 
Obvious reforms needed 
The bold decision 
Equality of States .... 
Large and small States 
The basis for renunciation 

" Safe " 

Committee on " Compromise " 
The two extremes .... 
The compromise on representation 

Local Interests 

Slaves 

The commercial motive 
Again a compromise 

Legislature, Executive, Judiciary 

International Significance of the, States of the 

Union 

Nation or Union of States 
Relation of States to the Union . 
" The People " . . . . 
Two sovereignties and their relation 
The Supreme Law 

The Society of Nations and the Union of States 

A court 

Plan to coerce States rejected .... 
Coercion for individuals only .... 
Basis of the Supreme Law 



PAGE 

24 



Table of Contents 



XI 



PAGE 

Each State with two constitutions . . . -57 

Supreme Law of both States and Union ... 58 

Revision 59 

Constitutionality 59 

Amendments 59 

Secession 59 

Admission of new States 60 

Relation of Justiciable to Political Questions . 61 
The unconstitutionality of an act .... 62 
Difference between judicial and political cases . . 66 
How political questions may become judicial . . 67 

Mr. Justice Baldwin 68 

A lesson for the Society of Nations . . . -7° 
Jurisdiction by consent and delegated authority . -72 

A light unto the world 73 

The Judiciary in the Constitutional Convention . 76 
Again the international significance .... 79 
The more perfect Union or Society of Nations . . 80 

Certain parallels 82 

Neither national nor federal 83 

The preamble and its limitations .... 84 
Difficulty overcome in Preamble . . . .86 
Lines between the States 88 

The American Union Interpreted by the Supreme 

Court 89 

Object of the Constitution 89 

In Conclusion 94 

The Rising Sun 96 

The Convention for the Pacific Settlement of In- 
ternational Disputes 97 



xii Table of Contents 

PAGE 

Benjamin Franklin's forecast 98 

Madison and the liberty of the world ... 99 

Appendix 101 

The Declaration of Independence, July 4, 1776 . 103 

The Articles of Confederation, 1776-1781 . . no 

The Constitution of the United States, 1787 . . 124 



ILLUSTRATIONS 

Portrait of Mr. Madison Frontispiece 

From the original by Gilbert Stuart, after the engrav- 
ing of H. B. Hall, Jr. 

Facing Page 
First page of Mr. Madison's manuscript — facsimile . . I 

Facsimile reproduction of Mr. Madison's " Notes " relat- 
ing to coercion of States 5 2 

Last page of Mr. Madison's manuscript — facsimile . . 97 



JAMES MADISON— Tabula Vitae 

Born, Port Conway, King George County, Vir- 
ginia, March 16, 1751. 

Graduated at Princeton, 1771. 

Delegate to the Convention of Virginia, 1776. 

Member of House of Delegates, 1776. 

Member of Governor's Council, 1777. 

Delegate to Continental Congress, 1780. 

Member of House of Delegates, 1784. 

Member to Annapolis Convention, 1786. 

Delegate to Congress, 1787. 

Member of Federal Convention, 1787. 

Member of the Constitutional Convention of 
Virginia, 1788. 

Member of House of Representatives, 1789-1797. 

Member of the House of Delegates of Virginia, 
1799. 

Secretary of State of the United States during 
President Jefferson's Administration, 1 801 -1809. 

President of United States, 1809-1817. 

Delegate to the Constitutional Convention of 
Virginia, 1829. 

Died, Montpelier, Orange County, Virginia, 
June 28, 1836. 



BIBLIOGRAPHY OF MADISON'S NOTES 

OF DEBATES IN THE FEDERAL 

CONVENTION OF 1787 

The Papers of James Madison, purchased by order of Congress; being 
his correspondence and reports of debates during the Congress 
of the confederation, and his reports of debates in the Federal 
Convention; now published from the original manuscripts, depos- 
ited in the Department of State, by direction of the Joint Library 
Committee of Congress, under the superintendence of Henry D. 
Gilpin. Washington, Langtree & O'Sullivan, 1840. 3 vols., facsim. 
Vol. 2-3. Debates in the Federal Convention of 1787. Vol. 2, 
pp. 683-1242; Vol. 3, pp. 1243-1264. 

(Some copies of this edition have the imprint New York; J. & H. 
G. Langley, 1841, and others are dated Mobile, 1852. Still 
other copies were published in Boston.) 

Debates on the Adoption of the Federal Constitution, in the Conven- 
tion held at Philadelphia, in 1787; with a diary of the debates 
of the Congress of the Confederation; as reported by James 
Madison. Revised and newly arranged by Jonathan Elliot. Com- 
plete in one volume. Volume v. Supplementary to Elliot's 
Debates. Washington, printed for the Editor, 1845. xxn, p. 641. 
(In 1853 the plates passed into the hands of J. B. Lippincott & 
Co., who have printed several editions, with change of date only.) 

Journal of the Federal Convention kept by James Madison, Reprinted 
from edition of 1840, which was published under direction of the 
United States Government from the original manuscripts. Ed. by 
E. H. Scott. Special edition, Chicago, Albert, Scott & Co., 1893. 
805 p. 

(Another edition was published by Albert, Scott & Co. in 1893, 
in two volumes, and in 1898, Scott, Foresman and Company 
(Chicago) issued a two volume edition.) 

Madison's Notes of the Proceedings of the Federal Convention. Wash- 
ington, Dept. of State, 1900. 904 p. 

Published as volume 111 of the Documentary History of the 
Constitution of the United States of America, 1787-1870, published 
by the Department of State, 1894-1905. 

The Writings of James Madison, comprising his public papers and 
his private correspondence, including numerous letters and 
documents now for the first time printed. Ed. by Gaillard Hunt. 
New York [etc.], G. P. Putnam's Sons, 1900-10. 9 vols., illus., 
6 facsim. 



xviii Bibliography of Madison's Notes 

Vol. 3-4. 1787. The Journal of the Constitutional Convention. 
1902-1903. Vol. 3-4, 471 p.; vol. 4, 551 p. 

The Journal of the Debates in the Convention which framed the Con- 
stitution of the United States, May-September, 1787, as recorded 
by James Madison. Ed. by Gaillard Hunt. New York and Lon- 
don, G. P. Putanm's Sons, 1908. 2 vols., 5 facsim. 

The Records of the Federal Convention of 1787. Ed. by Max Farrand. 
New Haven, Yale University Press 0etc, etc.], 1911. 3 vols. 
Vol. 1-2. The Records of the Federal Convention of 1787. 



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JAMES MADISON'S NOTES OF DEBATES 
IN THE FEDERAL CONVENTION 
OF 1787 AND THEIR RELA- 
TION TO A MORE PERFECT 
SOCIETY OF NATIONS x 



The Colossal Task 

The notes of debates in the Federal Convention, 
iield in the city of Philadelphia in the State of A signifi- 
Pennsylvania, from the 25th day of May to the record 
17th day of September, in the year of our Lord °f ■ > 
one thousand seven hundred eighty-seven, are notes event, 
which James Madison of Virginia, an eye witness 
and active participant, made from day to day, from 
hour to hour, and from minute to minute, of the 
proceedings of that gathering. The Convention 
was composed of official delegates of twelve of 
the thirteen " free, sovereign and independent 
States " of America forming an imperfect union 
or loose league under Articles of Confederation, 
which articles had been drafted during the war 

1 The quotations from Mr. Madison's Notes are taken in every 
instance from volume m of The Documentary History of the Consti- 
tution containing them in the form in which they were left by the 
distinguished reporter and statesman. 

As, however, Mr. Madison arranged his Notes chronologically, and 
as the reference in the text is made in each instance to the specific 
session and date thereof, any edition of the Notes may be used. 



2 Madison's Debates in Federal Convention 

of the American Revolution by the delegates of 
the thirteen States in the Continental Congress, and 
ratified thereafter from time to time by their 
respective legislatures, and binding upon all when 
finally ratified by the last of the thirteen on March 
i, 178 1. From its origin and nature this body of 
official delegates was at the time generally known 
as the Federal Convention. It is now popularly 
termed the Constitutional Convention because its 
labors resulted in a Constitution intended for the 
thirteen, now binding upon the forty-eight po- 
litical communities forming the United States of 
America. It was thus, in inception, nature and 
form, a conference; from the political point of 
view it was an American, from the geographical 
situation a continental, from the international as- 
pect it was an international conference. The 
States represented in this conference formed, it 
may be said, a group apart from the Society of 
Nations and held only loosely together by their 
common consent. They were the product of a 
political philosophy in which the people of each 
State were the source of power within the State. 
They were separated by an ocean from the Old 
World. They had a continent within which to 
experiment. The experience of Europe was to 
them both a guide and a warning. With no 
obstacles to overcome but those of their own cre- 
ation, no mistakes to correct but their own, they 
were faced with an opportunity unusual as it was 
significant. That we of to-day know how that 
opportunity was utilized is due to the pains- 



And a More Perfect Society of Nations 3 

taking care and unwavering devotion of James 
Madison. 

Inasmuch as this assembly was an international 
conference — Mr. Madison himself calls it a 
" Federal Convention " — the instrument of gov- Scope 
ernment which it framed and recommended to the in qu }^ 
Congress and the States for ratification, properly- 
called a Federal Constitution, is an international 
document. It seems natural, therefore, that we 
should all in this period of international transi- 
tion be interested to consider Mr. Madison and 
the manner in which he took the notes; to review 
the reasons which led the States to appoint dele- 
gates to confer in Philadelphia; to recount the 
difficulties met and overcome in compromising 
adverse and outwardly irreconcilable interests on 
the part of the States; to analyze the main pro- 
visions which the delegates in conference framed 
for a more perfect union of the several States, 
and to indicate in general how the Society of 
Nations can profit by the labors of this Federal 
Convention. If men be minded to create a more 
perfect Society of Nations and to endow it with 
agencies to carry into effect the terms of their 
agreement, they will be heartened by the history 
of these things, for, as the venerable Dr. Franklin 
said in speaking of the Convention, " We had 
many interests to reconcile. 1 ' ' 

The man who took notes of the debates of the 
conference was ideally qualified for his self- 

1 Letter dated Philadelphia, October 22, 1787, from Benjamin 
Franklin to Mr. Grand. {Documentary History of the Constitution, 
published by the Department of State, vol. IV., pp. 341-342.) 



4 Madison's Debates in Federal Convention 

Mr. Madi- imposed task, for, while neither the official Sec- 
his quali- retary nor the designated reporter of the confer- 
fications. ence> h e was a delegate from Virginia, cognizant 
of the aims and purposes of the gathering which 
he, more than any man then living, had helped 
to bring about. As a member from Virginia of 
the Continental Congress, acting under and in 
accordance with the Articles of Confederation, he 
had learned to appreciate from practical experi- 
ence the defects of the Articles, to amend which 
the conference had been called. He was person- 
ally acquainted with many of the leading figures 
of the conference, inasmuch as they had served 
together in the Congress, and he was therefore 
familiar with their style of speech and manner 
of speaking. Having abstracted the debates of 
the Congress in which they and he had partici- 
pated, he was already a practiced reporter. 
Added to these personal and technical qualifica- 
tions he was deeply impressed with the impor- 
tance of the occasion; indeed, he had prepared 
himself by a careful and elaborate study of the 
defects of the government, or rather the lack of 
government under the Articles, and his " Obser- 
vations " in which he recorded his views of those 
defects is today the most authentic and detailed 
survey of the subject from the pen of any con- 
temporary statesman, publicist or chronicler. He 
had further prepared himself for the role which 
he was to play as a delegate by a study of all 
known instances of federation in so far as the 
scanty material then at hand would permit. He 



And a More Perfect Society of Nations 5 

had finally fitted himself for that leadership in 
the conference accorded him by his fellow dele- 
gates from the first day of its proceedings, by 
drafting and submitting in advance the nature 
and scope of the amendments to be proposed, 
and also the " Plan " presented by the delegation 
of Virginia which served as the basis of discus- 
sion, and which, modified in principle and in 
form, became the Constitution of the perfected 
Union. But in addition, if indeed anything can 
be added, he went to the conference with the 
deliberate intention, formed in advance and car- 
ried out from day to day, of recording the pro- 
ceedings and of taking down the debates in his 
system of original shorthand, in order that future 
students of Federal Government at least should 
have an authentic and adequate account of the 
Federal Convention of 1787. 

We do not need to conjecture as to his inten- 
tions in these matters, to examine his formal 
writings, to search his personal correspondence or Mr - Madi- 

, , f , . _. son's own 

to bring together passages from different sources evidence. 
in order to establish these facts, as Mr. Madison 
has saved us the trouble by stating it all in 
express language and in detailed form in the 
preface which he himself prepared for the de- 
bates, from which the following three paragraphs 
are quoted: 

The curiosity I had felt during my researches 
into the History of the most distinguished Con- 
federacies, particularly those of antiquity, and 
the deficiency I found in the means of satisfying 



6 Madison s Debates in Federal Convention 

it more especially in what related to the process, 
the principles — the reasons, & the anticipations, 
which prevailed in the formation of them, deter- 
mined me to preserve as far as I could an exact 
account of what might pass in the Convention 
whilst executing its trust, with the magnitude of 
which I was duly impressed, as I was with the 
gratification promised to future curiosity by an 
authentic exhibition of the objects, the opinions 
& the reasonings from which the new System of 
Govt, was to receive its peculiar structure & 
organization. Nor was I unaware of the value 
of such a contribution to the fund of materials for 
the History of a Constitution on which would be 
staked the happiness of a young people great 
even in its infancy, and possibly the cause of 
Liberty throught the world. 

In pursuance of the task I had assumed I chose 
a seat in front of the presiding member, with the 
other members, on my right & left hand. In this 
favorable position for hearing all that passed, I 
noted in terms legible & in abbreviations & marks 
intelligible to myself what was read from the 
Chair or spoken by the members; and losing not 
a moment unnecessarily between the adjournment 
& reassembling of the Convention I was enabled 
to write out my daily notes during the session or 
within a few finishing days after its close, in the 
extent and form preserved in my own hand on my 
files. 

In the labor and correctness of this I was not 
a little aided by practice, and by a familiarity 
with the style and the train of observation and 
reasoning which characterized the principal 
speakers. It happened, also, that I was not absent 
a single day, nor more than a casual fraction 
of an hour in any day, so that I could not 



And a More Perfect Society of Nations 7 
have lost a single speech, unless a very short 



one. 



Nobly did Madison perform his mission, 
although the labor involved would have broken 
down the resolution of a more ordinary person. ?j? nite 
But, fortunately, James Madison was a determined patience 
little man, set in his ways, full of devotion to the *"J? uracy _ 
cause in which his heart was enlisted and his 
nation involved, and permeated with an enthusi- 
asm not sporadic only, but real and enduring. 
He found the duty, for duty it was, irksome. In 
a letter to his friend Thomas Jefferson, of July 
18, 1787, when the conference was in the throes 
of the struggle between the pretensions of the 
big and the claims of the little States, in which 
Mr. Madison, as a delegate from Virginia, stood 
by the big States, he wrote: 

I have taken lengthy notes of everything that 
has yet passed, and mean to go on with the drudg- 
ery, if no indisposition obliges me to discon- 
tinue it. 2 

And he is reported to have remarked to his 
friend, Edward Coles, an early and highly re- 
spected governor of Illinois, " that the labor of 
writing out the debates, added to the confine- 
ment to which his attendance in Convention sub- 
jected him, almost killed him: but having under- 

1 Documentary History of the Constitution, vol. iii., pp. 796W-0; 
Hunt, Writings of James Madison, vol. ii., p. 410; Farrand, Records of 
the Federal Convention, vol. iii., p. 550. 

* Documentary History of the Constitution, vol. iv., p. 236. 



8 Madison s Debates in Federal Convention 

taken the task, he was determined to accom- 
plish it." x 

Mr. Jefferson in his turn, after reading and 
pondering the Notes, wrote under date of August 
10, 1815, to John Adams, and during Mr. Mad- 
ison's term as president of the United States: 

Do you know that there exists in manuscript 
the ablest work of this kind ever yet executed, of 
the debates of the constitutional convention of 
Philadelphia in 1788 [87]? The whole of every- 
thing said and done there was taken down by Mr. 
Madison, with a labor and exactness beyond com- 
prehension. 2 

If John Adams did not know, he doubtless 
suspected it, as the members of the conference 
looked upon Mr. Madison as its reporter even 
if he himself thought it best to have the Notes 
appear posthumously. In any event, Mr. Jeffer- 
son's statement as to Mr. Madison's labors and 
the accuracy of his manuscript is correct, for as 
a reporter he spared no efforts to attain accuracy 
during the Convention, and after its adjourn- 
ment he took pains to fill up the few omissions 
which he noted upon reflection or rereading. 
Thus in a letter dated New York, August 21, 
1789, although busied with the organization of 
the government under the Constitution, he never- 
theless snatched a moment from his congressional 
duties to dragoon Edmund Randolph, soon to be 

1 Hugh Blair Grigsby, The History of the Virginia Federal Coil' 
vention of 1788, 2 vols., vol. i., p. 95, note. 

2 Paul Leicester Ford, The Writings of Thomas Jefferson, vol. ix., 
p. 528. 



And a More Perfect Society of Nations 9 

the first Attorney General of the United States, 
who had introduced on behalf of his colleagues 
the Virginia plan, into furnishing him the notes 
of his address on that occasion, saying: 

I find in looking over the notes of your intro- 
ductory discourse in the Convention at Philada. 
that it is not possible for me to do justice to 
the substance of it. I am anxious for particular 
reasons to be furnished with the means of pre- 
serving this as well as the other arguments in that 
body, and must beg that you will make out & 
forward me the scope of your reasoning. You 
have your notes I know & from these you can 
easily deduce the argument on a condensed plan. 
I make this request with an earnestness wch. 
will not permit you either to refuse or delay a 
compliance. 1 

Mr. Randolph complied, and an abstract of 
the speech in his own handwriting is accordingly 
included in the Notes. But we know that this 



1 Documentary History of the Constitution, vol. v., p. 192. 

Regarding the Virginian plan, often referred to as Mr. Randolph's, 
because he introduced it on behalf of the Virginian delegation, Mr. 
Madison says in the proposed preface to his Notes: 

" On the arrival of the Virginian Deputies at Philad^ it occurred 
to them that from the early and prominent part taken by that State 
in bringing about the Convention some initiative step might be ex- 
pected from them. The Resolutions introduced by Governor Randolph 
were the result of a Consultation on the subject; with an understand- 
ing that they left all the Deputies entirely open to the lights of dis- 
cussion, and free to concur in any alterations or modifications which 
their reflections and judgements might approve. The Resolutions as 
the Journals shew became the basis on which the proceedings of the 
Convention commenced, and to the developments, variations and 
modification^ of which the plan of Gov* proposed by the Convention 
may be traced." {Documentary History of the Constitution, vol. iii., 
796W/-H.) 



io Madison's Debates in Federal Convention 

help from the outside was rare, for Mr. Madison 
himself says in his draft of a preface, 

With a very few exceptions the speeches were 
neither furnished, nor revised, nor sanctioned, by 
the speakers, but written out from my notes, aided 
by the freshness of my recollections . . . the 
exceptions alluded to were, — first, the sketch fur- 
nished by Mr. Randolph of his speech on the 
introduction of his propositions, on the twenty- 
ninth day of May; secondly the speech of Mr. 
Hamilton, who happened to call on me when 
putting the last hand to it, and who acknowledged 
its fidelity, without suggesting more than a very 
few verbal alterations which were made; thirdly, 
the speech of Gouverneur Morris on the second 
day of May [July], which was communicated to 
him on a like occasion, and who acquiesced in 
it without even a verbal change. The correctness 
of his language and the distinctness of his enun- 
ciation were particularly favorable to a reporter. 
The speeches of Doctor Franklin, excepting a few 
brief ones, were copied from the written ones 
read to the Convention by his colleague, Mr. Wil- 
son, it being inconvenient to the Doctor to remain 
long on his feet. 1 

Indeed, Mr. Madison's conception of accuracy 
and of the reporter's duty was such as to cause 
him to preserve even the little " nasty " things 
said about himself, within and without the Con- 
vention. Thus in the session of July 5th, Mr. 
Patterson, sponsor of the New Jersey or small 
State plan, acknowledged that " the warmth [of 

'Hunt, Writings of James Madison, vol. ii., p. 411; Farrand, 
Records ^of the Federal Convention, vol. iii., pp. 550-551. 



And a More Perfect Society of Nations u 

Mr. Bedford] complained of was improper; but 
he thought the Sword & the Gallows little cal- 
culated to produce conviction. He complained 
of the manner in which M r M — & M' Gov- 
Morris had treated the small States." x It would 
have been so easy to omit the last sentence 
altogether, or to leave only the reference to " Mr. 
Govr. Morris," who had been the chief offender. 
But this would not have been history, and the 
" Mr. M" here referred to, was dealing with 
history. Again, it was only a very honest man, 
with a scrupulous, indeed one might say, an 
abnormal or extravagant regard for accuracy, 
who would record, preserve and add as a note 
to the session of June 15th, the following remarks 
made to him in person by John Dickinson: 

You see the consequence of pushing things too 
far. Some of the members from the small States 
wish for two branches in the General Legislature, 
and are friends to a good National Government; 
but we would sooner submit to a foreign power, 
than submit to be deprived of an equality of 
suffrage, in both branches of the legislature, and 
thereby be thrown under the domination of the 
large States. 2 

Another instance of Madison's accuracy is the 
note appended to Charles Pinckney's speech in 
the session of June 25th, for which that young and 
aggressive but able person had carefully prepared 
himself, and which he wished to have handed 

1 Documentary History of the Constitution, vol. iii., p. 278. 

2 Documentary History of the Constitution, vol. iii., pp. 124-125. 



12 Madison s Debates in Federal Convention 

down to posterity. The reporter included in his 
text the copy handed him, saying in a note, " the 
residue of this speech was not furnished like the 
above by Mr. Pinckney." 1 This otherwise 
trifling incident is important in that Pinckney's 
draft shows the accuracy of Mr. Madison's tran- 
scription. 

A careful examination of the somewhat elab- 
orate notes made by Robert Yates, a delegate 
from the State of New York, who, on July ioth, 
withdrew from the Convention in disgust at the 
way things were going; of the fragmentary and 
imperfect notes by Rufus King first published 
in 1894, Mr. King being a delegate from the 
State of Massachusetts, but later a distinguished 
resident of New York, and of the desultory and 
scattered notes which have more recently come 
to light of James McHenry, a delegate from the 
State of Maryland, only establishes Mr. Madi- 
son's accuracy, sets his skill as a reporter hors de 
concours, and confirms to the letter Mr. Jeffer- 
son's opinion " that the whole of everything said 
and done there was taken down by Mr. Madison 
with a labor and exactness beyond comprehen- 



sion." 



Documentary History of the Constitution, vol. iii., p. 207. 



And a More Perfect Society of Nations 13 



Origin of the Conference 

The condition of affairs in America on the eve 
of the conference filled many an observer abroad 
with dismay and many a citizen at home with The 
apprehension lest the fair fruits of the Revolution anxiety" 2 
be lost, lest for example out of the erstwhile 
colonies, held more or less in check by the 
mother country, now States united but not har- 
monious under the Articles of Confederation, 
there might emerge thirteen sovereign, free and 
independent States bent upon exercising their 
sovereignty, freedom and independence after the 
manner of their elders if not betters of Europe. 
There was a profound and general dread in 
America of any form of government under which 
the interest of the one might prevail over that 
of the many, and the common good be sacrificed 
to the ambition of the few strong enough to 
satisfy their political ambitions and predatory 
appetites. How to make their world " safe for 
democracy " was as keen a question then as for 
us now. 

In the unfinished preface to the Notes written 
some forty years later, Mr. Madison briefly 
touched upon the situation, which, indeed, he 
had treated more fully in his Memorandum on 
the defects of the Confederation. In the closing 
days of his life, certain conditions, even those 
ceasing to exist long ago, stood out undimmed by 
age and so important that they could neither 



14 Madison's Debates in Federal Convention 

be overlooked in retrospection nor left unre- 
corded by this most conscientious of observers. 
In respect to the relations of the States with one 
another and with foreign Powers, he then felt 
justified in saying: 

At the date of the Convention, the aspect & 
retrospect of the pol. condition of the U. S. could 
not but fill the pub. mind with a gloom which 
was relieved only by a hope that so select a Body 
would devise an adequate remedy for the existing 
and prospective evils so impressively demand- 
ing it. 

It was seen that the public debt rendered so 
sacred by the cause in which it had been incurred 
remained without any provision for its payment. 
The reiterated and elaborate efforts of Cong, to 
procure from the States a more adequate power 
to raise the means of payment had failed. The 
effect of the ordinary requisitions of Congress 
had only displayed the inefficiency of the authy. 
making them; none of the States having duly 
complied with them, some having failed alto- 
gether or nearly so; . . . 

The want of authy. in Congs. to regulate Com- 
merce had produced in Foreign nations partic- 
ularly G. B. a monopolizing policy injurious to 
the trade of the U. S. and destructive to their 
navigation; . . . 

The same want of a general power over Com- 
merce led to an exercise of this power separately, 
by the States, wch. not only proved abortive, but 
engendered rival, conflicting and angry regula- 
tions. Besides the vain attempts to supply their 
respective treasuries by imposts, which turned 
their commerce into the neighboring ports, 



And a More Perfect Society of Nations 15 

. . . the States having ports for foreign com- 
merce, taxed & irritated the adjoining States, 
trading thro' them, as N. Y. Pena. Virga. & S. 
Carolina. Some of the States, as Connecticut, 
taxed imports as from Massts. higher than im- 
ports even from G. B. of wch. Massts. com- 
plained to Virga. and doubtless to other States. 

In certain cases the Fedl. authy. was violated 
by Treaties & wars with Indians, as by Geo.: 
by troops, raised & kept up, witht. the consent of 
Congs. as by Massts. by compacts witht. the con- 
sent of Congs. as between Pena. and N. Jersey, 
and between Virga. and Maryd. 1 

But these matters relate primarily to their 
outward conduct. " In the internal administra- 
tion of the States," Mr. Madison continued, " a 
violations of Contracts had become familiar in 
the form of depreciated paper made a legal 
tender, of property substituted for money, of In- 
stalment laws, and of the occlusions of the Courts 
of Justice; although evident that all such inter- 
ferences affected the rights of other States, rela- 
tively Creditor, as well as Citizens Creditors 
within the States." 2 

And after enumerating instances of lack of uni- 
formity " in cases requiring it," such as natural- 
ization, bankruptcy laws, and the want of " a 
coercive authority operating on individuals and 
a guaranty of the internal tranquillity of the 
States," he drew the natural consequence from 

1 Documentary History of the Constitution, vol. iii., pp. 7961'-;. 

2 Documentary History of the Constitution, vol. iii., p. 796/t. 



1 6 Madison's Debates in Federal Convention 

this condition of the Union that " the Fedl. authy. 
had ceased to be respected abroad, and disposi- 
tions shewn there, particularly in G. B., to take 
advantage of its imbecility, and to speculate on 
its approaching downfall; at home it had lost 
all confidence & credit. The unstable and unjust 
career of the States had also forfeited the respect 
& confidence essential to order and good Govt., 
involving a general decay of confidence & credit 
between man & man." * 

In a word the States had patched up a union 
during the war of independence in order to 
obtain its recognition by Great Britain; and 
with the signing of the treaty of peace on Sep- 
tember 3, 1783, between that country and repre- 
sentatives of the United States, mentioning each 
of the thirteen by name, and recognizing them 
" to be free, sovereign and independent States," 
to quote from the Treaty, the politicians of the 
day apparently lost interest in the Union which 
had served its purpose, and turned their undi- 
vided attention to domestic affairs of their respec- 
Aiterna- tive States. If, however, the States were to live 
together, and geography had done its best to settle 
that question for them, they either had to observe 
the Articles of Confederation, revising them 
where faulty or inadequate, or, brushing the 
Articles aside, to settle by treaty the relations that 
they should sustain with one another. 

The regulation of commerce which had caused 
the colonies to turn their backs upon the mother 

1 Documentary History of the Constitution, vol. iii., p. 796*. 



tives. 



And a More Perfect Society of Nations 17 

country, was destined to draw the States together. 
The State of Maryland owned the Potomac River 
and claimed jurisdiction to low water mark on 
the Virginian shore. This was a source of con- 
tention on the part of the larger commonwealth, 
but the Maryland charter was clear, or at least so 
clear that the Virginian men of affairs, lawyers The 

111 11 r 11 regulation 

as well as laymen, could not successfully contest of com . 
the claim. Both States were deeply interested in merce. 
Chesapeake Bay, into which the Potomac empties, 
and which extends far into Maryland and dis- 
charges its waters through Virginia into the 
Atlantic Ocean. Then, too, Pennsylvania, ad- 
joining Maryland on the north and almost touch- 
ing the bay into which the Susquehanna River 
flows, and Delaware, to the east of Maryland, 
were interested in any regulation of commerce 
upon the bay and its tributaries. These familiar 
facts are but a few of the long array of commer- 
cial difficulties destined to influence the course of 
our national growth. 

The immediate result was that in 1785 a 
meeting at Alexandria in Virginia, of delegates 
from Maryland and Virginia, artfully entertained Meeting 
at Mount Vernon by the great Washington, led ^£}**~ 
to the suggestion that the States generally should 
be invited to consider in common the regulation 
of navigation and commerce in their common in- 
terest. 

In May of the same year the legislature of Mas- 
sachusetts, upon the recommendation of Gover- 
nor Bowdoin, passed a resolution declaring inade- 



1 8 Madison s Debates in Federal Convention 

quate the Articles of Confederation and calling 
for a Convention from all the States. But the 
resolution never reached the Congress. 

In the early days of 1786, the legislature of 
Virginia therefore appointed commissioners, of 
whom Mr. Madison was one, to consider how far 
a uniform system of interstate commercial regu- 
lations was " necessary to their common interest 
and their permanent harmony," directing them 
to invite the several States to send delegates to a 
convention for that purpose. The first Monday 
of September was agreed upon as the time, and 
At the little town of Annapolis, then and now the 

Annapolis. ca pital of Maryland, as the place of meeting. 

Nine accepted the invitation and appointed 
delegates, but only the representatives of five of 
the States appeared. Under these circumstances 
it did not seem worth while for a part to devise 
regulations for the whole. The delegates there- 
fore wisely contented themselves with a report 
of the meeting to the States, signed by John Dick- 
inson as chairman, but drafted by the deft hand 
of Alexander Hamilton. 1 They sent a copy to 
the Congress for its information and action, and 
recommended the appointment of delegates of 
the States to meet in Philadelphia, on the second 
Monday in May of the ensuing year, in order 
to revise the articles of Confederation. Virginia 
put itself in touch with the States, urging them 
to comply with the recommendation. 

The Congress ultimately approved the plan, in- 

1 Documentary History of the Constitution, vol. i., pp. 1-5. 



And a More Perfect Society of Nations 19 

fluenced, no doubt, by acts of rebellion in Massa- 
chusetts against the government of that State and 
by the fear of similar outbreaks in other States; 
and the Convention was officially called by the 
Congress, as stated in its resolution of February 
21, 1787, for 

the sole and express purpose of revising the 
Articles of Confederation, and reporting to the 
Congress and the several legislatures, such alter- Call of 
ations and provisions therein, as shall, when the 9 on ' 
agreed to in Congress, and confirmed by the ventlon - 
States, render the Federal Constitution adequate 
to the exigencies of Government, and the preser- 
vation of the Union. 1 

All of the thirteen States, with the exception 
of the pigmy commonwealth of Rhode Island 
and Providence Plantations, appointed delegates 
to meet at the time and the place fixed for the 
meeting, and, as the world knows, the Articles of 
Confederation were revised with a vengeance by 
throwing them overboard the Ship of State and 
by drafting a scheme of government adequate to 
the needs of the States, because based upon their 
experience both as colonies and as States. 

Accomplishing the Impossible 

The second Monday of May, 1787, fell upon 
the 14th, but on that day only two delegations ap- 
peared at Philadelphia, the Pennsylvanian, which 
could not well fail to be on hand, and the Vir- 

1 Documentary History of the Constitution, vol. i., p. 8. 



20 Madison's Debates in Federal Convention 

ginian group with the punctual Washington at 
The its head. It was not until Friday, the 25th of 

task° SSlble ^ e montn > when the delegates of seven States, 
that is, a majority of the thirteen then forming 
the Union, appeared and convened in the very 
city and stately building where eleven years pre- 
viously the Declaration of Independence had 
been approved, proclaimed, and signed. The 
place and the hour were big with possibilities for 
the future. What was to take place? Chastened 
by the experience of eleven years of anxiety and 
apprehension, what would the conference bring 
forth? Could the States possibly create and main- 
tain a more perfect union based upon the separa- 
tion of the powers of both, and upon the recogni- 
tion of the interdependence of each? It seemed 
impossible. Nevertheless the fifty-five delegates 
to the Convention, of which Thomas Jefferson 
said with pardonable exaggeration, " it is really 
an assembly of demigods " 1 — accomplished the 
impossible by good will, concession, and com- 
promise. And yet, three of the members present 
at the signing of the Constitution, Messrs. Mason 
and Randolph of Virginia, and Mr. Gerry of 
Massachusetts, refused to add their names to those 
of their thirty-nine colleagues, although that doc- 
ument owed very much to their labors. 

This Federal Convention was, as already stated, 
an international conference, and as such it would 

1 Letter of Thomas Jefferson, dated Paris, Aug. 30, 1787, addressed 
to John Adams. {Documentary History of the Constitution, vol. iv., 
p. 266.) 



And a More Perfect Society of Nations 21 

have been opened in person by the venerable Ben- 
jamin Franklin, then President of the common- 
wealth of Pennsylvania, who " alone could have 
been thought of as a competitor " and who would 
have proposed George Washington, of Virginia, 
as its President, had not, as Mr. Madison informs 
us, " the state of the weather and of his health 
confined " the illustrious Pennsylvanian " to his 
house." * As it was, Robert Morris, senior mem- 
ber of the Pennsylvanian delegation, in his ab- 
sence, made the motion, seconded by John Rut- 
ledge of South Carolina, and, upon ballot taken, 
General Washington was found to be unanimously 
elected, as he had been chosen Commander in 
Chief of the Revolutionary Army by the Con- 
gress, and as he was twice later, and because of President 
the Convention, to be elected President of the gecretar 
United States. After a few words from the 
newly elected President, modestly disclaiming 
merit on his part, as was his wont, and as 
appears to be also the custom in international 
conferences, Mr. Wilson, next in rank in the 
Pennsylvanian delegation, rose and proposed for 
Secretary, William Temple Franklin, grandson of 
the great doctor; then " Colonel," as Mr. Madi- 
son calls him, but Alexander Hamilton as we of 
today would say, proposed a companion in arms, 
one Major William Jackson. A ballot was taken, 
the States divided five to two against the grand- 
son, and the Major was declared elected — a bad 
choice, be it said, with due deference to the 

1 Documentary History of the Constitution, vol. iii., p. 9. 



22 Madison's Debates in Federal Convention 



Creden- 
tials. 

Commit- 
tee on 
rules and 
orders. 



Vote by 
States. 



Colonel, his sponsor, and the five States that 
voted for him. For if we are to judge by the 
Major's journal, as we must in the absence of 
the notes of the proceedings which he claims 
to have taken, but which, mislaid or lost, have 
disappeared without a trace of their existence, the 
official Secretary's services left not a little to be 
desired. 

The Convention now had an efficient President 
and a titular Secretary. The credentials of the 
delegates of the several States and the instructions 
contained in them, were read, whereupon the 
Convention was organized and in session. Other 
details were promptly arranged. A committee 
was appointed " to prepare standing rules and 
orders," and the Convention adjourned from Fri- 
day, the 25th, until Monday, the 28th, to allow 
the committee to meet and prepare its report At 
the session of the 28th the committee reported 
and, with an amendment and an addition, the rules 
were adopted by virtue whereof each State had, 
as under the Articles of Confederation, one vote 
irrespective of the number of the delegates, and 
the votes of the States were recorded, not the 
names of the delegates casting them. "A house 
to do business," to quote Mr. Madison's lan- 
guage, consisted " of the deputies of not less than 
seven States"; all questions were to "be decided 
by the greater number of these which shall be 
fully represented," but a smaller number could 
adjourn from day to day. 1 

1 Documentary History of the Constitution, vol. Hi., p. n. 



And a More Perfect Society of Nations 23 
Committees were to be elected by ballot, and Election 

1 •, t s^ • .of com- 

they were not to sit while the Convention was in m i t tees b> 
session, as the attendance of all at the general ballot - 
meetings was deemed desirable. "'It was further 
provided that nothing spoken was to be printed 
or otherwise published or communicated without 
leave.^Such were the main features of the Con- 
vention's organization. 

These are, it will be observed, the methods Signifi- 
of an international conference, with the differ- societ^°of 
ences only that nominations were to be made and Nations, 
decided by ballot, not by a silence that is held 
to betoken assent, and that resolutions or pro- 
posals were to be adopted by a majority instead 
of by the unanimous vote of all the States. But 
it is not unreasonable to believe that future in- 
ternational conferences may, both as to election by 
ballot and to adoption by majority, profit by the 
experience of the Federal Convention, which is 
to date the only international conference whose 
labors have stood the test of time and of criti- 
cism. This seems probable because self-respect- 
ing States can not be expected to have the larger 
States organize the conference by prearrange - 
ment without consulting the delegates of the less 
powerful nations, and because it may prove unde- 
sirable to continue the unanimity rule when no 
State is bound by its vote in conference or even by 
the vote of the conference except as the state 
signifies its own ratification after formal sub- 
mission of the project for separate approval or 
disapproval. But the point to be borne in mind 



24 Madison s Debates in Federal Convention 

— a theme to which reference will frequently be 
made — is that the Federal Convention of 1787 is 
an abiding object lesson for the student of inter- 
national conferences. 



General Interests 

The Articles of Confederation provided for a 
Union of the States, with a Congress as its legis- 
lative and executive organs, so far as the States 
divested themselves of and granted legislative 
functions to the United States. No judiciary, as 
such, was created, although the Congress of the 
Confederation was vested with the power of 
"appointing courts for the trial of piracies and 
felonies committed on the high seas and establish- 
The more ing courts for receiving and determining finally 
S robiems a PP ea ls m a ^ cases of captures," with the power 
presented of appointing temporary tribunals or commissions 
Articles " m a ^ disputes and differences now subsisting or 
ofConfed- that hereafter may arise between two or more 
States concerning boundary jurisdiction or any 
other cause whatever," including " all controver- 
sies concerning the private right of soil claimed 
under different grants of two or more States." 1 
How should the conference readapt the judiciary 
to the new needs of the new day? 

But there were other and not less serious diffi- 
culties. In the Continental Congress each State 
could be represented by not less than two, nor 
more than seven delegates, subject to recall, and 

1 Articles of Confederation, Article IX. 



And a More Perfect Society of Nations 25 

who were to receive such compensation for their 
services as their States might be pleased to allow. 
But, irrespective of the number of delegates, each 
State was to have, and actually did have only one 
vote in the Congress, a provision galling upon the 
large States, but the price of confederation, as it 
was to be the price of the more perfect union of 
the Constitution. The Articles, as a purely dip- 
lomatic document, acted upon the States, not 
upon their citizens, and could only be changed or 
amended by unanimous consent. Less important 
measures required the vote of nine States, and 
during the recess of the Congress a committee of 
the States sat to conduct affairs, with power to 
transact such business as nine States might author- 
ize, but not to do anything " for the exercise of 
which, by the articles of confederation, the voice 
of nine States in the Congress of the United States 
assembled is requisite." 1 

But still more serious in the exercise of the 
powers specifically granted to the United States 
in Congress assembled, of which the States had ^p^™* 
divested themselves, the Congress could only central 
recommend as it had no way of compelling the authority. 
States to comply. It could not disregard the 
State and lay its hand upon the citizen, as in a 
national form of government. The Congress was 
authorized to enter into treaties with foreign 
countries, the States renouncing in behalf of " the 
firm league of friendship with each other " 2 the 

1 Articles of Confederation, Article X. 
- Articles of Confederation, Article III. 



26 Madison's Debates in Federal Convention 

exercise of this right, possessed by them as sover- 
eign, free and independent States, 1 but the Con- 
gress could not enforce the observance of the 
treaties; the States renounced the right to form 
treaties, alliances or agreements between them- 
selves, but if they did the Congress was helpless 
to undo them; the Congress could determine the 
quota of troops to be furnished by each State 
which might or might not comply, without any 
power on the part of the Congress other than of 
persuasion arising from the needs of the occasion. 
The Congress could determine the amount of 
revenue to be raised for general purposes to be 
" supplied by the several States, in proportion to 
the value of all land within each State, granted 
to or surveyed for any person, as such land and 
the buildings and improvements thereon"; but, 
as the taxes for paying the proportions thus 
determined were to "be laid and levied by the 
authority and direction of the Legislatures of 
the several States," it is evident that the revenue 
of the United States would, in last resort, depend 
upon the pleasure of the several States. 2 Attempts 
to change the basis of liability for quotas or 
taxes from the value of land to the num- 
ber of inhabitants or citizens, to raise a 
revenue by duties upon imports, and to regulate 
commerce between and among the States, failed 
because of the inability in each case to obtain 
the unanimous consent of the several States. 

1 Articles of Confederation, Article II. 

2 Articles of Confederation, Article VIII. 



And a More Perfect Society of Nations 27 

Without pursuing the subject further it is 
obvious that the conference must endeavor to 
grant to the general government the means to obvious 
make its limited powers effective within the "eeded 8 
terms of the grants. The more perfect union 
would thus be empowered to raise the revenue 
needed to carry on the business of government, to 
regulate navigation and commerce. Besides, 
means must be devised either for coercing the 
States, or for allowing the general government to 
reach the citizens of the States directly, without 
the intervention or agency of the State. In 
other words, some method for dealing to the 
extent of its authority with citizens bound by law 
and subject to suit, instead of with States making 
law but immune from process, was necessary for 
the central government. The only other recourse 
would be war which, as Mr. Madison justly said, 
would abrogate the treaty, compact or agreement. 
It was further obvious that in framing a new 
government for such of the several States as might 
be minded to ratify it, the delegates would natur- 
ally draw upon the experience which the States 
had had in constitution-making before and since 
the Declaration of Independence. The govern- 
ment of the perfected union would probably con- 
sist of a legislature, of an executive and of a 
judiciary, authorized to exercise the powers to 
the extent of the constitutional grant but not 
beyond. This was particularly likely because of 
the threefold division of power as embodied in 
the Virginian Bill of Rights, antedating the 



28 Madison s Debates in Federal Convention 

Declaration of Independence and followed by 
the other States, and also because the movement 
to amend the Articles of Confederation came 
from Virginia. Furthermore, Virginia's great 
citizen was president of the Convention and its 
delegation was the most influential delegation on 
the floor of the " House ". It was also to be 
expected that the judiciary would play a conspic- 
uous role in any scheme of government which the 
delegates might devise, for without a central 
judiciary every treaty might conceivably receive 
thirteen different interpretations, as the treaty- 
was the law of each of the States and subject as 
such to interpretation by the court of each State. 
Separate coordinate State courts might present 
the spectacle of any one act of the general legis- 
lature, binding the State and its citizens, being 
interpreted and applied in thirteen different ways. 
Again it was certain that the States styled 
" sovereign, free and independent " in the Arti- 
cles of Confederation would only consent to the 
renunciation of specified, enumerated powers of 
a general nature, belonging more appropriately 
to the general government than to any State. 
Such a limited renunciation in the common inter- 
est of the several States, rather than in the interest 
of any one or of any group thereof, seemed neces- 
sary. But it was apparent throughout that they 
intended to reserve or retain for themselves all 
powers which they did not consent to grant to 
the government of the Union. Further it was 
to be anticipated that the Constitution would be 



And a More Perfect Society of Nations 29 

subject to amendment, as experience had shown 
the necessity of amending the Articles, and that 
the Amendments, not too easily adopted, would 
yet be made by less than the unanimous vote of 
the States. And, finally, it must have been fore- 
seen that the struggle begun in Congress between 
the large and the small States, the small claiming 
equality of right with the large, would make its 
appearance in the Convention, and that the States 
or sections would stand out for their special or 
sectional interests; that navigation and commerce 
in the eastern carrying and trading States, and 
that the slave trade and property in slaves in the 
Southern States for example, would all demand 
attention. In other words, it was in the nature of 
things that the Constitution, if drafted, would 
have to be a creature of concessions in the rela- 
tions of the large and the small, and of com- 
promise in the matter of local or sectional inter- 
ests of the peoples of the States. 

But before taking up the proceedings of the 
conference on these various matters, it is well to 
premise that, on the very day on which the con- 
ference resolved itself into a Committee of the 
Whole, May 30, 1787, the day after Mr. Randolph 
had "opened the main business" with his 
address on behalf of the Virginian delegation 
and in justification of its plan, the delegates made J he * old 

J , . . decision. 

the bold decision of postponing the proposition to 
amend the Articles of Confederation by adopting 
the motion " that a national Government ought to 
be established, consisting of a supreme legislative, 



30 Madison's Debates in Federal Convention 

executive & judiciary." In the light of the 
resolution adopted by the Congress limiting the 
Convention to a revision of the Articles of Con- 
federation, and in view of the instructions of the 
several States to their respective delegates to the 
same effect, this was indeed a decision bold as it 
was momentous. It is easy to justify this act of 
the Convention from the technical point of view, 
in that its draft of a Constitution was, in form 
and in effect, merely a recommendation to the 
States, to be accepted or rejected by them in the 
exercise of their sovereign discretion; but perhaps 
the best justification is that of President Wash- 
ington, who remarked: " If to please the people, 
we offer what we ourselves disapprove, how can 
we afterward defend our work? " x 

This action of the Convention could only mean 
that the Union of the States was indeed to have 
a government adequate to its needs. It should be 
said, however, in this connection, that, in the 
course of subsequent proceedings, the word " na- 
tional " was unanimously struck from the phrase 
"national government" on the motion of Mr. 
Ellsworth of Connecticut that the government to 
be established should be not a national govern- 
ment, as originally proposed by Mr. Randolph 
and approved by the partizans of what was then 
called consolidation, but " a government of the 
United States," to consist of the threefold divi- 



1 Gouverneur Morris, An oration upon the Death of General Wash- 
ington p. 21; delivered in New York, December 31, 1799 (Farrand, 
Records of the Federal Convention, vol. iii., 382.) 



And a More Perfect Society of Nations 31 

sion, which, in Mr. Ellsworth's view and ap- 
parently in that of the Convention, was the 
proper title. But by the terms of the resolution 
adopted by the conference at the first session of 
the Committee of the Whole, it was apparent that 
the delegates proposed to ignore their " instruc- 
tions " and to " revise " the Articles of Confed- 
eration by supplanting them. 

The matter of the equality of States came up 
before the opening of the Convention and was only 
got out of the way by concession from both sides 
in July. The questions involving local interests 
were settled only in the closing days of the con- 
ference. These two sets of difficulties, seemingly 
insurmountable then, are still peculiarly signifi- 
cant to international conferences. Agreement 
on all other matters, essential to the organization 
of the government of the Union, was found to be 
comparatively easy on the principle of give and 
take, a principle which is also the very life and 
breath of any international conference. The two 
issues, equality and local interests, were so acute 
that they will be considered in some detail before 
proceeding to an analysis and appreciation of 
the international document which we call the 
Constitution. 

Mr. Madison tells us somewhat casually, and in 
a note of later date which he appended to the 
completed manuscript of the Session of May 28th, Equality 
that " previous to the arrival of a majority of the 
States, the rule by which they ought to vote 
in the Convention had been made a subject 



32 Madison's Debates in Federal Convention 

of conversation among the members present 1 '. 1 
Gouverneur Morris, Robert Morris, and others 
from Pennsylvania — Massachusetts, Pennsyl- 
vania, and Virginia were then the large 
States — were of the opinion that they should 
unite in denying an equal vote " as unreason- 
able, and as enabling the small States to 
negative every good system of Government," pro- 
posed, of course, by the large for the benefit of 
the small States, " which must in the nature of 
things," according to the views of the large States, 
Large " be founded on a violation of that equality." 
small ^- r - Madison was strongly in favor of the equal 
states. rights of the great States, as delegates of great 
States usually are, and believed, no doubt hon- 
estly, that the claim of the small States to an 
equality of vote was preposterous, much as Bishop 
Horsley was pleased to assert that the only inter- 
est the people had in laws was " to obey them." 2 
But he recalled the inability of the Continental 
Congress to adopt any other principle than that 
of equality in the matter of representation in the 
very Articles which the conference was called to 
amend. 

At least Messrs. Washington and Madison, of 
the Virginian delegation, were practical, hard- 
headed men, and they were set upon getting the 
most effective general government to be had, 

1 Documentary History of the Constitution, vol. iii., p. 10, footnote. 

2 "Dr. Horsley, Bishop of Rochester, 'did not know what the 
mass of the people in any country had to do with the laws, but to 
obey them.'" (Sir Thomas Erskine May, Constitutional History of 
England, Holland's edition, 1912, vol. ii., p. 55.) 



And a More Perfect Society of Nations 33 

without breaking up the Convention at the out- 
set. They apparently possessed the hope that 
intimate association with the delegates of the 
larger States would impress the other delegates 
with their superior wisdom and reasonableness. 
However that may be, " the members from Vir- 
ginia," Mr. Madison says, " conceiving that such 
an attempt might beget fatal altercations between 
the large & small States, and that it would be 
easier to prevail on the latter, in the course of the 
deliberations, to give up their equality for the 
sake of an effective Government, than on tak- 
ing the field of discussion, to disarm themselves 
of the right & thereby throw themselves on the 
mercy of the large States, discountenanced & 
stifled the project." 1 

The Virginian plan of taking the little ones 
in hand and bringing them to reason did not and 
could not work, as the small States, like the large, The basis 
were only willing to renounce a right in the inter- Nation 1 " 1 " 
est of the whole, not in the interest of any group 
other than their own, and then only when the 
renunciation seemed to them " safe," of which 
each of the States was to judge. 

This was very bluntly expressed during the grill- 
ing process to which the small were put by the 
large States, which could neither be considered 
their elders nor their betters, and it is recorded by 
Mr. Madison, whose honesty as a reporter, be it 
again said, is even more astonishing than his skill, 
in the summary of his long and comprehensive 

1 Documentary History of the Constitution, vol. iii., p. 10, footnote. 



34 Madison's Debates in Federal Convention 

address in the session of June 19th, which he no 
doubt hoped would " prevail " upon the small 
States, " in the course of the deliberations, to give 
up their equality for the sake of an effective Gov- 
ernment." Mr. Madison, as reported in his 
Notes, said that " the great difficulty lies in the 
affair of Representation; and if this could be 
adjusted, all others would be surmountable." x 
Nothing could be truer, as the event amply 
demonstrated. Mr. Madison then continued: 
" It was admitted by both the gentlemen from N. 
Jersey [Mr. Brearly and Mr. Paterson] that it 
would not be just to allow Virga. which was 16 
times as large as Delaware an equal vote only." 
Safe." In the abstract they may have been right, but 

the admission did not show any marked conver- 
sion to the " reasonable " point of view of the 
large States, inasmuch as, according to Mr. Mad- 
ison, " their language was that it would not be 
safe for Delaware to allow Virg* 16 times as 
many votes." 3 

That was the crux of the question and the solu- 
tion was brutally stated by Mr. or General Pinck- 
ney, for there were two delegates of that name 
from South Carolina, when, in the session of 
June 6th, one or the other of them said — Mr. 
Madison ascribing the remark to the Mister, Mr. 
Yates to the General — : " The whole comes to this 
. . . Give N. Jersey an equal vote, and she will 

1 Documentary History of the Constitution, vol. Hi., p. 160. 

2 Documentary History of the Constitution, vol. ill-, p. 161. 

3 Documentary History of the Constitution, vol. iii., p. 161. 



And a More Perfect Society of Nations 35 

dismiss her scruples, and concur in the Nat- 
system." 1 

The Convention having come to a standstill — Commit- 
" We are now at a full stop," to use the homely }< e £ ™ 
but expressive language of Mr. Sherman 2 of Con- promise.' 
necticut — and in response to a general feeling 
that " Something must be done, or we shall dis- 
appoint not only America, but the whole world," 
to quote Mr. Gerry 3 of Massachusetts, the great 
and good General Pinckney proposed, at the very 
same session of July 2d, in which these remarks 
had been made, but before they were uttered, that 
" a Committee ... be appointed to devise & 
report some compromise," to consist of a member 
from each of the eleven States represented, as two 
of the three delegates from New York had with- 
drawn, and the delegates from New Hampshire, 
although appointed, had not yet arrived. 4 

There was a way out, and it was found not by 
any one, but by the collective wisdom of the con- 
ference, as so often happens. To Mr. Madison 
and to many the question seemed to be as he had 
put it in the session of June 20th: 



1 Documentary History of the Constitution, vol. iii., p. 136. 

It is immaterial whether Mr. Pinckney or Mr. C. C. Pinckney — that 
is to say, the General — made the above remark, and it is only noted 
in passing as showing Mr. Madison's accuracy in substance, if not 
always in form. Thus Robert Yates, a delegate from New York, 
recounts the incident: "Mr. C. C. Pinckney supposes that if N-Jersey 
was indulged with one vote out of 13, she would have no objection 
to a national government." (Secret Proceedings and Debates of the 
Federal Convention, p. 127, published in 1821.) 

" Documentary History of the Constitution, vol. iii., p. 264. 

3 Documentary History of the Constitution, vol. iii., p. 269. 

4 Documentary History of the Constitution, vol. iii., p. 264. 



36 Madison's Debates in Federal Convention 

In a word; the two extremes before us are a 
perfect separation & a perfect incorporation, of 
The two the 13 States. In the first case they would be 
extremes, independent nations subject to no law, but the 
law of nations. In the last, they would be mere 
counties of one entire republic, subject to one 
common law. 1 

In fact, the compromise was very simple. As 
the legislature was to consist of two branches the 
The com- small States conceded representation proportioned 
on Repre- to tne population of each State in the lower 
sentation. branch of the legislature, called therefore the 
House of Representatives; the larger States con- 
ceded equality of representation in the upper 
house, called the Senate, in which each State 
should be represented by two members chosen by 
the legislatures of each of the several States. In 
the lower house, each State was to have a member 
for each 40,000, later reduced to 30,000, inhabi- 
tants. In the upper house, the members were to 
vote individually, each casting a vote, not one 
casting the two votes of the State, a device appar- 
ently adopted to secure a vote for the purpose of 
a quorum when one or other of the members of 
a State might be absent. In addition, revenue 
bills were to originate in the lower house, to be 
accepted or rejected in the upper house, a pro- 
vision ultimately modified so as to permit the 
Senate to amend but not originate bills of this 
nature. Inasmuch as a bill to become a law 
had to pass both houses, the origin of the bill, 

1 Documentary History of the Constitution, vol. Hi., p. 232. 



And a More Perfect Society of Nations 37 

which can be amended in either house out of 
all resemblance to its former self, was a matter 
of no great consequence and was so regarded 
by the larger States. The truth is the com- 
mittee and the conference were at their wits' 
end to devise something that might seem to 
be a fair concession from each side, as the 
delegates of the big States were genuinely anxious 
to save their faces and the delegates of the little 
States were equally anxious to help them in the 
process. 

They were set, however, on preserving the 
fruits of victory which they had literally snatched 
from the very jaws of defeat. And, curiously, it 
was Gouverneur Morris, who, on September 15th, 
the last business day of the Convention, as the ses- 
sion of the 17th was formal and restricted primar- 
ily to signing, moved to render forever impossible 
the inequality of the States under the Constitu- 
tion of the United States. Again, it is the honest 
Mr. Madison who thus reports the incident, not 
unmixed perhaps with a touch of retrospective 
irony, in connection with Article V, concerning 
Amendments: 

Mr. Gove r Morris moved to annex a further 
proviso — " that no State, without its consent shall 
be deprived of its equal suffrage in the Senate." r 

And the big State man had the best of reasons 
for his eleventh hour conversion to the views of 
the little States. "This motion," Mr. Madison 

1 Documentary History of the Constitution, vol. iii., p. 758. 



38 Madison s Debates in Federal Convention 

continues, " being dictated by the circulating 
murmurs of the small States was agreed to with- 
out debate, no one opposing it, or on the question, 
saying no." 1 

Local Interests 

The leading and far-sighted statesmen of Vir- 
ginia were against the slave trade, the existence 
Slaves. and extension of slavery, George Mason and 
Mr. Madison speaking eloquently against it. ■ 
George Washington, as is well known, emanci- 
pated his slaves, and Thomas Jefferson never got 
over the omission from his draft of the Decla- 
ration of Independence of the denunciation of 
King George for fastening slavery upon the 
colonies. 

' The Northern States were not in favor of 
slavery. They would have preferred to see it 
wiped out, and the attitude of the Middle States 
was similar. The delegates of the Carolinas, 
North and South, and Georgia, however, were 
inexorable. They held that slaves were property 
and that they should be recognized as such./ 

At the same time the slave was to figure as a 
man in estimating population and in fixing the 
basis of representation in the Congress, in accor- 
dance with the resolution of the Continental 
Congress in the proportion of five slaves to three 
white men. But the delegates of the slave States 
were not so anxious to have their slaves counted 

1 Documentary History of the Constitution, vol. ill-, p. 758. 



And a More Perfect Society of Nations 39 

for purposes of direct taxation, although they 
yielded the point. 

jThe slave trade was to be allowed, or rather 
it was not to be prohibited, until 1808. The 
Southern States had already secured for their 
citizens the return of their fugitive slaves who 
should escape to a sister State in which slavery 
might not exist, and they made what they were 
pleased to consider a concession that a tax or 
duty not exceeding ten dollars might be laid upon 
each slave imported from the outside world. 
This, however, was not enough; the three States 
insisted upon their right to stock up with slaves 
before the slave trade could be stopped, and they 
further demanded that the right to do so be 
secured by a proviso that the Constitution could 
not be amended in that particular prior to 1808. 

How did it happen that the will of the three 
prevailed against the judgment, or at least the 
preference, of the majority? In this way. The 
Eastern States insisted that Congress should have 
the power to pass laws affecting navigation and 
commerce by a mere majority, whereas the 
Southern farming States depending upon the 
exportation of their agricultural products and the 
importation of wares in return wished to require 
a majority of two-thirds, as in the case of treaties, 
for the validity of rules or regulations affecting 
navigation or commerce. The Eastern States 
were unwilling to confederate if the hands of 
Congress were tied in this matter and in this 
manner; the three Southern States were unwilling 



40 Madison s Debates in Federal Convention 

to confederate unless the slave trade were admit- 
ted and safeguarded. Politics, they say, make 
. queer bedfellows. The Eastern and the three 
Southern States, willing to sacrifice the common 
good if need be for their special interests, joined 
forces with the result that the bargain, for such 
it was, passed without a dissenting vote in the 
matter of navigation. The bargain was, as will 
presently appear, that Congress might pass laws 
regulating navigation and commerce by a majority 
vote, and that the slave trade might go on for 
twenty years. The delegates of the Northern and 
Middle States saw in the acceptance of the scheme 
the price of union, and their grandchildren of the 
North and the South paid the price of union in 
the best blood and unspeakable treasure of both 
sections. 

The history of the miserable compromise faith- 
fully chronicled by Mr. Madison should make 
the good people of the North chary in criticism 

The com- of the good people of the South. Thus Mr. 

mercial Gorham of Massachusetts, President of the 

motive. ' 

Continental Congress, and Chairman of the Com- 
mittee of the Whole, when the Convention met 
in this more informal manner, said in the session 
of August 22d: "He desired it to be remem- 
bered that the Eastern States had no motive to 
Union but a commercial one. They were able 
to protect themselves. They were not afraid of 
external danger, and did not need the aid of the 
Southern States." 1 Again, in the session of the 

1 Documentary History of the Constitution, vol. Hi., p. 591. 



And a More Perfect Society of Nations 41 

29th of August, he recurred to the larger vote 
to be required in legislation affecting navigation 
and commerce, saying on this occasion: 

If the Government is to be so fettered as to be 
unable to relieve the Eastern States what motive 
can they have to join in it, and thereby tie their 
own hands from measures which they could other- 
wise take for themselves. The Eastern States 
were not led to strengthen the Union by fear for 
their own safety. 1 

On their side the delegates from the three South- 
ern States did not prostrate themselves before their 
brethren of the Northeast. In the session of Aug- 
ust 22d, where Mr. Gorham had candidly avowed 
that the Eastern " did not need the aid of the 
Southern States," General Pinckney warned that 
the delegates of South Carolina could not sign 
the Constitution without adequate recognition and 
protection of slavery, and that if they did, their 
States would not ratify it, saying: 

S. Carolina & Georgia cannot do without slaves. 
As to Virginia she will gain by stopping the 
importations. Her slaves will rise in value, & 
she has more than she wants. It would be 
unequal to require S. C. & Georgia to confederate 
on such terms . . . He contended that the impor- 
tation of slaves would be for the interest of the 
whole Union. The more slaves, the more pro- 
duce to employ the carrying trade; The more 
consumption also, and the more of this, the more 
of revenue for the common treasury. He admit- 

1 Documentary History of the Constitution, vol. Hi., p. 641. 



42 Madison's Debates in Federal Convention 



Again 
a Com- 
promise. 



ted it to be reasonable that slaves should be dutied 
like other imports, but should consider a rejec- 
tion of the clause as an exclusion of S. Carolina 
from the Union. 1 

S 

The slave trade was therefore allowed, but in 
the first instance not to extend beyond the year 
1800. In the session of August 25th the General 
moved to substitute 1808, thus prolonging the 
trade for eight years. And Mr. Gorham, whose 
mind was set on protecting the interest which his 
section had in navigation and commerce, just as 
General Pinckney was looking after the interests 
of his, " 2 ded the motion " as reported by Mr. 
Madison, who followed Mr. Gorham with a 
statement in his own behalf that " Twenty years 
will produce all the mischief that can be appre- 
hended from the liberty to import slaves." 2 Still 
the motion was carried: New Hampshire, Massa- 
chusetts, Connecticut, Maryland, and the three 
Southern States voting in its favor; New Jersey, 
Pennsylvania, Delaware, Virginia, voting against 
it, New York not being represented. 3 

In the session of August 29th, in which Mr. 
Gorham for the second time reminded the dele- 
gates that " the Eastern States were not led to 
strengthen the Union by fear for their own 
safety," General Pinckney, speaking as the pleni- 
potentiary of three Southern States, and they 
could not have found an abler man, said: 

1 Documentary History of the Constitution, vol. iii., p. 587. 

2 Documentary History of the Constitution, vol. iii., p. 616. 

3 Documentary History of the Constitution, vol. iii., p. 616. 



And a More Perfect Society of Nations 43 

It was the true interest of the S. States to have 
no regulation of commerce; but considering the 
loss brought on the commerce of the Eastern 
States by the revolution, their liberal conduct 
toward the views of South Carolina, and the 
interest of the weak South" States, he thought it 
proper that no fetters should be imposed on the 
power of making commercial regulations; and 
that his constituents, though prejudiced against the 
Eastern States, would be reconciled to this liber- 
ality — He had himself, he said, prejudices ag st 
the Eastern States before he came here, but would 
acknowledge that he had found them as liberal 
and candid as any men whatever. 1 

As Mr. Madison expressed it in after years, 
in a note to this passage, " He [General Pinck- 
ney] meant the permission to import slaves. An 
understanding on the two subjects of navigation 
and slavery, had taken place between those parts 
of the Union, which explains the vote on the 
Motion depending, as well as the language of Genl. 
Pinckney & others." 2 When, therefore, the vote 
was taken to strike out the requirement of a two- 
thirds majority in navigation acts, it was agreed 
to as Mr. Madison says, " nem. con ". 3 Of a 
truth, a fellow interest as well as " a fellow feel- 
ing makes us wondrous kind." 

These two incidents have been dwelt upon at 
considerable length to make it clear from the 
experience of the Federal Convention that while 

1 Documentary History of the Constitution, vol. iii., p. 637. 

2 Documentary History of the Constitution, vol. iii., p. 637, footnote. 

3 Documentary History of the Constitution, vol. iii., p. 642. 



44 Madison's Debates in Federal Convention 

men of good will could not successfully com- 
promise irreconcilable interests involving funda- 
mental conceptions of right or wrong, yet they 
could reach a " working agreement " by mutual 
concession in a fundamental principle such as 
equality, not involving, as we would say today, 
moral turpitude. There are some things that 
majorities or unanimity can not do, as when Syd- 
ney Smith wittily stumped the leader of the over- 
whelming Tory majority in Parliament to take 
advantage of its strength to repeal the Pytha- 
gorean Theorem! Within this line, the nations 
of the Society of Nations can go as far as the 
States of the American Union in conference 
assembled, and Mr. Madison's Notes will show 
them how honest men, when not confronted by 
wholly irreconcilable interests, such as black and 
white, can " safely " afford to act. 

Legislature, Executive, Judiciary 

These two great questions out of the way, the 
conference reached without serious difficulty a 
workable agreement, as events have proved, upon 
the legislative department with an upper and a 
lower branch, upon specific matters concerning 
the States as a whole, and upon laws binding the 
United States, the States, and peoples within each 
of them. 

Powers to be granted to an executive called the 
President, were agreed upon, such as the power 
to execute the laws of the more perfect union. It 



And a More Perfect Society of Nations 45 

was easily agreed that he should be elected for a 
period of years, the number of years giving rise 
to much controversy. It was also agreed that 
he be eligible to reelection by the people within 
the States, responsible to them for the faithful 
performance of the rights and duties of his office, 
subject to impeachment in the Senate represent- 
ing the States at the instance of the House of 
Representatives, and removable upon trial under 
the presidency of the Chief Justice of the Supreme 
Court, if convicted by a two-thirds vote of the 
Senators present. Under the Constitution, as we 
all know, the President appoints certain officers 
of the United States, subject to confirmation by 
the Senate, conducts the foreign affairs of the 
Union, receives diplomatic agents from foreign 
countries, and negotiates treaties and conventions 
with them subject to the advice and consent of 
two-thirds of the Senators present. 

In like manner there was no insurmountable 
difficulty in creating a Supreme Court of the 
Union, although there was considerable debate 
in reaching an agreement that the Congress might 
establish federal courts of first instance with an 
appeal to the Supreme Court. It was urged that 
all the States had courts, that it was therefore 
unnecessary to create new and competing ones, 
and that uniformity of interpretation of the Con- 
stitution, of Acts of Congress, of treaties of the 
United States, of constitutions and statutes of the 
several States, would be adequately secured on 
appeal to the Supreme Court about the advis- 



46 Madison's Debates in Federal Convention 

ability of whose creation there was neither doubt 
nor dispute. Assuredly, the State courts could 
have been utilized as suggested, but, as time has 
demonstrated, the system of federal courts created 
by the Congress and operating in every State 
and Territory has worked well, and the de- 
cisions of federal questions arising and corrected 
by the Supreme Court whenever the necessity 
arises. 



International Significance of the States 
of the Union 

These last matters, however, are familiar and 
of interest to the American, not necessarily to the 
foreigner. But Mr. Madison's Notes contain 
passages respecting the States, the Union of States, 
the relation of the laws of the Union to those of 
the several States, the judiciary, the nature of 
judicial questions, and the role that a court of 
Justice plays in this Union of States, and which 
it can therefore play in the Society of Nations. 
Such passages are of interest to American or 
foreigner believing not merely in the possibility, 
but in the absolute necessity, of international 
Nation or organization. The international aspect of these 
States.° things has been strangely overlooked because of 
the tendency to regard the United States as a 
unitary nation, instead of a union of States, more 
perfect, indeed, than that of the Articles of Con- 
federation, but nevertheless a union, for which the 
people of the several States ordained and estab- 



And a More Perfect Society of Nations 47 

lished this Constitution of the United States, to 
go no further than the Preamble to that venerable 
and venerated instrument of government. These 
phases of the subject will now be considered, for 
which Mr. Madison's Notes can be and must be 
taken as the first of texts and the most authentic 
of sources. 

That we may rightly group the relations of 
the States to the Union let us consider again 
what was to be done. Twelve States had met 
by their delegates to create some form of Union 
more perfect than that existing under the Articles 
of Confederation, or to provide that Union with 
the powers to make its maintenance worth while. 
After the first day of the Convention the dele- 
gates were trying to endow a new Union of their 
own creation with a government, to carry out and 
to exercise the sovereign powers which the several 
States assembled in conference believed, as the Relation 
result of their experience, could be taken from ° Q th * es 
each of them and transferred to the government Union. I 
of the Union. This government was to be and 
still is the agent of the States for general purposes 
to the extent of the sovereign powers granted to 
it by the people of the several States. To this 
extent the Union is sovereign. The sovereign 
powers not granted, or which the States did not 
renounce, were to be and still are reserved to the 
several States. To remove any doubt on this 
subject, two articles to be added to the Constitu- 
tion were proposed in the first session of the first 
Congress meeting under it, and, ratified by three- 



48 Madison's Debates in Federal Convention 

fourths of the legislatures of the States then form- 
ing the Union, became an integral part of the 
instrument. The first of the two Articles provides 
that " The enumeration in the Constitution, of 
certain rights, shall not be construed to deny or 
disparage others retained by the people." The 
second, that " The powers not delegated to the 
United States by the Constitution, nor prohibited 
by it to the States, are reserved to the States 
respectively, or to the people." 

We know that Mr. Madison approved of these 
Articles because he proposed them to the Con- 
gress, and because in the course of the debates 
he said so. The term " people," used in these two 
articles added to the Constitution, and contained 
in the opening words of the Preamble to the 
Constitution, means the people of the States, not 
"The the people generally without reference to the 

People." States. While this is the reason of the thing, we 
can nevertheless invoke the highest authority for 
it, if authority be needed, for in delivering the 
unanimous opinion of the Supreme Court of the 
United States in the leading case, which is also 
his masterpiece, of McCulloch v. Maryland (4 
Wheaton, 316, 403), decided in 18 19, the greatest 
of Chief Justices, John Marshall, said: 

No political dreamer was ever wild enough 
to think of breaking down the lines which sepa- 
rate the States, and of compounding the American 
people into one common mass. 

The Chief Justice did not, however, leave the 
matter here; he drew and stated the necessary con- 



And a More Perfect Society of Nations 49 

elusion of his thought and of his language, which 
was, be it remembered, likewise the view of his 
brethren, saying, " Of consequence, when they act, 
they act in their States." 

We therefore have on the one hand the Union 
with its government of three branches, invested 
with sovereign powers of a general nature, con- 
ceived in the interest of the States as a whole, not 
in the interest of any one or group thereof, and to 
be exercised in the interest of all; and on the 
other hand, the governments of the several States, 
possessing and exercising the reserved sovereign 
powers of the States, or those whereof they did 
not renounce the exercise. Each, as Chief Justice 
Marshall has finely said in the McCulloch case, Two 
is sovereign within its proper sphere and neither J° e g er a "§ n " 
sovereign within the proper sphere of the other, their 

How were these two sovereignties to be kept relatlon - 
in check, that is to say, each within its appro- 
priate sphere? Mr. Madison and his closest 
friends first thought by investing the Union with 
the power to coerce the States to comply with 
their duties, to establish a council of revision to 
pass upon and to veto the acts of the States and of 
the Federal Legislature, contrary to the proposed 
Constitution. The discussion of these matters was 
long and interesting, and the details are given, no 
doubt faithfully, in his Notes by Mr. Madison, 
who records his repeated attempts to achieve his 
purpose in his own way, the repeated failures of 
himself and friends, and the method which fin- J he 

11 Supreme 

ally and fortunately prevailed, apparently the L aw. 



50 Madison s Debates in Federal Convention 

only method fitted for States of the Union and 
worthy of consideration by States of the Society 
of Nations. It is one of the most striking 
instances in which the conference was wiser than 
its wisest members. How was it done? By the 
simple expedient, as it seems to us of today, of 
making the Constitution, the laws of Congress 
made pursuant to it and the treaties of the United 
States, the supreme law of the Union, as of each 
of the States. In cases of controversy any or all 
of them may as written documents be passed 
upon, interpreted and applied, but only in a 
specific case arising thereunder duly carried to 
the court. 

In the Virginian plan, undoubtedly drafted by 
Madison and still existing in his handwriting, 
the National Legislature was to be vested with the 
powers of the Congress under the Articles of 
Confederation and the right to legislate in cases 
in which the separate States were incompetent or 
involving the harmony of the Union. 

In addition, and of especial importance for 
present purposes, the proposed National Legis- 
lature was to be possessed by the sixth resolution 
with the power and the right " to negative all 
laws passed by the several States, contravening 
in the opinion of the National Legislature the 
articles of Union; and to call forth the force of 
the Union ag st any member of the Union failing 
to fulfill its duty under the articles thereof ". * 

1 Documentary History of the Constitution, vol. iii., p. 18. 



And a More Perfect Society of Nations 51 

The Society of Nations and the Union 
of States 

The eighth resolution of the Virginia plan 
provided 

that the Executive and a convenient number of 
the National Judiciary, ought to compose a Coun- 
cil of Revision with authority to examine every A Court, 
act of a National Legislature before it shall 
operate, and every act of a particular Legislature 
before a Negative thereon shall be final; and 
that the dissent of the said Council shall amount 
to a rejection, unless the Act of the National 
Legislature be again passed, or that of a particu- 
lar Legislature be again negatived by the mem- 
bers of each branch. x 

There is no mention here of a court as such, 
except that a number of judges were to act in an 
advisory capacity upon measures which, if passed, 
they might have to interpret and apply. But in 
the course of the proceedings the court as such 
made its appearance, replacing other provisions 
which thereupon disappeared and are only to be 
found in Mr. Madison's Notes, as they have 
otherwise dropped entirely out of sight. 

In the first place, the plan to coerce a State was Plan to 
expressly discarded within two days of the intro- 5°^ 
duction of the plan itself. On the 30th of May, rejected 
Mr. Mason, according to Mr. Madison, " observed 
that the present confederation was not only defi- 

1 Documentary History of the Constitution, vol. iii., pp. 18-19. 



52 Madison s Debates in Federal Convention 

cient in not providing for coercion & punishment 
ag st delinquent States; but argued very cogently 
that punishment could not in the nature of things 
be executed on the States collectively, and there- 
fore that such a Gov» was necessary as could 
directly operate on individuals, and would punish 
those only whose guilt required it." x This point 
of view evidently impressed Mr. Madison, be- 
cause, the day after, he himself proposed to post- 
pone this clause when it was reached in the first 
reading, saying, as reported by himself, 

that the more he reflected on the use of force, the 
more he doubted the practicability, the justice 
Coercion and the efficacy of it when applied to people 
, for . . collectively, and not individually. — A Union 

only. 1 Ua S °f me States containing such an ingredient seemed 
to provide for its own destruction. The use of 
force ag st a State, would look more like a decla- 
ration of war, than an infliction of punishment, 
and would probably be considered by the party 
attacked as a dissolution of all previous compacts 
by which it might be bound. He hoped that such 
a system would be framed as might render this 
resource unnecessary, and moved that the clause 
be postponed. 2 

The motion was, as he says, " agreed to nem. 
con ", 3 and the subject although subsequently 
brought before the conference in the session of 
June 15th, by the New Jersey plan, was not again 
seriously considered although it was discussed. 

1 Documentary History of the Constitution, vol. Hi., p. 22. 

2 Documentary History of the Constitution, vol. iii., pp. 33-34. 

3 Documentary History of the Constitution, vol. iii., p. 34. 



And a More Perfect Society of Nations 53 

It is indeed true that the Articles of Confeder- 
ation operated upon the individual in what may 
be considered minor matters, but in the essentials 
of government only upon the States themselves. 
The government of the perfected Union acts 
upon individuals in essentials and only inci- 
dentally, and in what may be considered ex- 
ceptional cases, upon States. This was in 
form as well as in fact a reversal of the old 
order of things. This plan of Messrs. Mason and 
Madison fortunately prevailed, and the system of 
government ultimately adopted coerces the indi- 
vidual and controls the State by a declaration of 
the Supreme Court that the statute relied upon 
is not a defense to an individual acting upon and 
pleading it in justification of his action, as it is 
inconsistent with the Constitution, and, therefore, 
null and void. In the course of the session of 
July 14th, Mr. Madison "called for a single 
instance in which the Gen- 1 Gov* was not to oper- 
ate on the people individually." * Apparently 
none was given, as none is recorded in the notes, 
and Mr. Madison continued, expressing a truth 
so fundamental as to deserve to become an axiom 
of political science, that " the practicability of 
making laws, with coercive sanctions, for the 
States as political bodies, had been exploded on 
all hands." 2 

1 Documentary History of the Constitution, vol. iii., p. 340. 

In the 43d Number of The Federalist, which appeared on January 
25, 1788, Mr. Madison recurred to this subject, and himself answered 
the question to which no reply had been given on the floor of the 
Convention. 

2 Documentary History of the Constitution, vol. iii., p. 340. 



54 Madison's Debates in Federal Convention 

As already said, it was necessary to make of 
the Constitution, of the laws of Congress enacted 
in pursuance thereof, and of treaties, the supreme 
law alike of the Union and of the States. To 
accomplish this Mr. Madison left no stone un- 
turned, and he completely succeeded, albeit after 
Basis much difficulty. The expedient was exceedingly 

Su reme simple and effective, and is sufficiently stated for 
Law. present purposes in the 15th and last resolution 

of the original Virginian plan, to the effect that 
the amendments which shall be offered to the 
Confederation by the Convention ought at a 
proper time, or times, after the approbation of 
Congress to be submitted to an assembly or as- 
semblies of Representatives, recommended by the 
several Legislatures to be expressly chosen by the 
people, to consider & decide thereon. 1 

The reasons for submitting the Constitution to 
the conventions of the people to be held in each 
of the States, specially called for this purpose, 
composed of members chosen by the people, not 
by the legislatures, were fully and frequently 
stated by Mr. Madison during the course of the 
debates on this question, which he regarded, and 
rightly, as of fundamental importance. Of the 
many statements of Madison and his followers, 
three made' in three different periods of the Con- 
vention will suffice. Early in its sessions, 

Mr. Madison [as recorded by himself, under 
date of June 5th] thought this provision essential. 
The articles of Confed" themselves were defec- 

1 Documentary History of the Constitution, vol. iii., p. 20. 



And a More Perfect Society of Nations 55 

tive in this respect, resting in many of the States 
on the Legislative sanction only. Hence in con- 
flicts between acts of the States, and of Cong- 
especially where the former are of posterior date, 
and the decision is to be made by State Tribunals, 
an uncertainty must necessarily prevail, or rather 
perhaps a certain decision in favor of State 
authority. He suggested also that as far as the 
articles of Union were to be considered as a 
Treaty only of a particular sort, among the Gov- 
ernments of Independent States, the doctrine 
might be set up that a breach of any one article, 
by any of the parties, absolved the other parties 
from the whole obligation. For these reasons 
as well as others he thought it indispensable that 
the new Constitution should be ratified in the 
most unexceptional form, and by the supreme 
authority of the people themselves. 1 

Later when the matter was up again in the 
session of July 23rd, 

Mr. Madison thought it clear that the Legis- 
latures were incompetent to the proposed changes. 
These changes would make essential inroads on 
the State Constitutions, and it would be a novel 
& dangerous doctrine that a Legislature could 
change the constitution under which it held its 
existence. There might indeed be some constitu- 
tions within the Union, which had given a 
power to the Legislature to concur in altera- 
tions of the federal Compact. But there were 
certainly some which had not; and in the case 
of these, a ratification must of necessity be ob- 
tained from the people. He considered the 
difference between a system founded on the Legis- 

1 Documentary History of the Constitution, vol. iii., pp. 65-66. 



56 Madison s Debates in Federal Convention 

latures only, and one founded on the people, to 
be the true difference between a league or treaty, 
and a Constitution. The former in point of 
moral obligation might be as inviolable as the 
latter. In point of political operation, there 
were two important distinctions in favor of the 
latter. 1. A law violating a treaty ratified by a 
pre-existing law, might be respected by the 
Judges as a law, though an unwise & perfidious 
one. A law violating a constitution established 
by the people themselves, would be considered 
by the Judges as null & void. 2. The doctrine 
laid down by the law of Nations in the case of 
treaties is that a breach of any one article by 
any of the parties, frees the other parties from 
their engagements. In the case of a union of 
people under one Constitution, the nature of the 
pact has always been understood to exclude such 
an interpretation. Comparing the two modes in 
point of expediency he thought all the considera- 
tions which recommended this Convention in 
preference to Congress for proposing the reform 
were in favor of State Conventions in preference 
to the Legislatures for examining and adopt- 
ing it. 1 

Finally, in the session of August 31st, 

Mr. Madison considered it best to require Con- 
ventions; Among other reasons, for this, that the 
powers given to the Gen- Gov* were being taken 
from the State Gov* the Legislatures would be 
more disinclined than conventions composed in 
part at least of other men; and if disinclined, 
they could devise modes apparently promoting, 
but really thwarting the ratification. The diffi- 

1 Documentary History of the Constitution, vol. iii., p. 411. 



And a More Perfect Society of Nations 57 

culty in Maryland was no greater than in other 
States, where no mode of change was pointed out 
by the Constitution, and all officers were under 
oath to support it. The people were in fact, 
the fountain of all power, and by resorting to 
them, all difficulties were got over. They could 
alter constitutions as they pleased. It was a 
principle in the Bills of rights, that first prin- 
ciples might be resorted to. 1 

The meaning of all this is eminently clear and 
free from reasonable doubt. By the Declaration 
of Independence, the people were henceforward 
to be regarded as the source of power. The pro- 
posed Constitution for all the States was drafted 
by the delegates of all the States. The constitu- 
tion of each State dealing with questions arising 
within and not extending beyond the confines of 
the State, was drafted by delegates of the State. 
The Constitution of the United States was to be Each 
ratified by the people of each of the States in ** te c ^ h 
order to bind each of the States. The State con- stitutions. 
stitution was to be ratified only by the people of 
that State. Each State was thus to have two con- 
stitutions each ratified by the source of power, 
namely the people. 

If matters had stood here, each constitution, 
National and State, would have been of equal 
rank and validity. But all doubts are removed 
by other considerations. The New Jersey plan, 
proposed on June 15th by Mr. Paterson of that 
State, in behalf of the smaller States, although 

1 Documentary History of the Constitution, vol. iii., p. 656. 



58 Madison's Debates in Federal Convention 

rejected, contained an article which, amended 
in form but adopted in substance, provided 

that all Acts of the U. States in Cong- made by 
virtue & in pursuance of the powers hereby & 
by the articles of confederation vested in them, 
and all Treaties made & ratified under the author- 
ity of the U. States shall be the supreme law of 
the respective States so far forth as those Acts 
or Treaties shall relate to the said States or their 
Citizens, and that the Judiciary of the several 
States shall be bound thereby in their decisions, 
any thing in the respective laws of the Individual 
States to the contrary notwithstanding. 1 

If we combine this clause, which as amended 

forms the second edition of Article VI, of the 

Supreme Constitution, with the first clause of the second 

both ° f section of Article III, extending the judicial 

states power of the United States " to all Cases, in Law 

and Equity, arising under this Constitution, the 

Laws of the United States, and Treaties made, 

or which shall be made, under their Authority," 

we have the full demonstration of the problem. 

The Constitution, Acts of Congress, and treaties 

are not only the law, but the supreme law, 

of the Union and of each of the several States, 

and to be held as such by all courts, State and 

Federal. 

To the student of international conferences 
interested to know how our forefathers of that 
day settled the questions of revision, constitution- 
ality, amendments and withdrawal from the 

1 Documentary History of the Constitution, vol. iii., pp. 127-128. 



and 
Union. 



And a More Perfect Society of Nations 59 

Union, only a few words are necessary. In the Revision. 
Constitution there is no place for a council of 
revision, but the President was given the power 
to veto an act of Congress unless passed again 
by a two-thirds majority in each house. Its con- Constitu- 
stitutionality is to be determined by the judges tlonaity - 
not acting in an advisory capacity but as judges 
in the decision of a given case arising under 
the law. " A junction of the judiciary " would, 
as John Dickinson aptly said in the session of 
June 6th, involve " an improper mixture of 
powers."- 1 It was natural that the State judges 
should pass upon the question of repugnance to 
the supreme law, especially because the Federal 
Constitution was likewise the constitution of the 
State, and the supreme law. Since the Constitu- Amend- 
tion was adopted in its entirety by the people of 
each of the several States, it was not only the 
supreme law, but it could only be amended, and 
the relations between the Union and the States 
changed, by the legislatures or conventions of 
three-fourths of the States, in accordance with 
the Fifth Article. There is here, therefore, no 
room for withdrawal, for the people of a State 
could only change its relations to the Union 
by the vote of three-fourths of the States. It Seces- 
is difficult to see how the people of a State could 
withdraw from their own Constitution, which 
they themselves and in conjunction with the other 
States had made their supreme law. Secession 
could only be revolution. 

1 Documentary History of the Constitution, vol. iii., p. 79. 



sion. 



Admission 
of new 



60 Madison's Debates in Federal Convention 

While it is technically correct to say that the 
Constitution was made by delegates of twelve 
States, it was nevertheless true that its framers 
contemplated that Rhode Island, which was not 
represented, would consent to ratify it and thus 
make the more perfect union coterminous with 
the English colonies of the New World which 
had proclaimed their independence on July 4, 
1776, and whose recognition as States was ac- 
knowledged by the mother country on September 
3, 1783. It was foreseen, however, that the terri- 
tory to the westward, which had been ceded to 
the United States by the States claiming it, would 
States. be peopled by the venturesome of the East or 
their descendants; that this territory would be 
subdivided, and, at the instance and request of 
the inhabitants, admitted as States to the Union 
of States upon what terms? As equals or in- 
feriors? The far-sighted, of whom Mr. Mason, 
Mr. Madison and Mr. Sherman were conspicuous 
examples, urged their admission upon equality. 
Gouverneur Morris, however, and some others, 
wishing to maintain the supremacy of the Atlan- 
tic seaboard at the expense of the inland and 
Western States, opposed this, with the result that 
the third section of the Fourth Article of the 
Constitution merely provides that " New States 
may be admitted by the Congress into this Union," 
without, however, stating that the admission was 
to be upon terms of equality with the other mem- 
bers. But the spirit if not the letter required it, 
and in practice every State is admitted upon a 



And a More Perfect Society of Nations 61 

basis of equality, so that the latest newcomer 
stands upon the same footing with the States that 
gained their independence from Great Britain 
and which made the Constitution of the United 
States in the Federal Convention of 1787 a pos- 
sibility. No other solution of the problem is con- 
ceivable in this more perfect union of the west- 
ern world; no other solution should be possible 
in a perfected Society of Nations. 



Relation of Justiciable to Political 
Questions 

The judicial power of the United States ex- 
tends only to justiciable, not political questions, 
as was pointed out by Mr. Madison in the ses- 
sion of August 27th. He " doubted whether it 
was not going too far to extend the jurisdiction 
of the Court generally to cases arising Under the 
Constitution & whether it ought not to be limited 
to cases of a Judiciary Nature. The right of 
expounding the Constitution in cases not of this 
nature ought not to be given to that Depart- 
ment." x And Mr. Madison was doubtless cor- 
rect when he says it was " generally supposed 
that the jurisdiction given was constructively 
limited to cases of a Judiciary nature." 2 Such 
was the view of the conference, such is the view 
repeatedly expressed by the Supreme Court itself. 

How the unconstitutionality of an act and the 

1 Documentary History of the Constitution, vol. Hi., p. 626. 

2 Documentary History of the Constitution, vol. Hi., p. 626. 



62 Madison's Debates in Federal Convention 

justiciable nature of a controversy are to be de- 
termined are matters of such international im- 
portance as well as of domestic concern that 
they may well be examined with some care. 

In regard to the first matter, it may be said 
at once that the function of the court in cases 
The involving the constitutionality of an act as under- 

"utionaiity stood in the American Union is not recognized 
of an act. elsewhere, although our method seems essential 
to the success if not to the conception of a Fed- 
eration. The English view, prevailing it is be- 
lieved generally, except in the more perfect Union 
of the United States, and in such Federations 
as the Dominion of Canada and the Common- 
wealth of Australia, is shortly stated by Mr. 
Justice Willes, who, in speaking of an act of 
Parliament and the course which an English 
court of justice may take in reference to it, said, 
in the case of Lee v. Bude and Torrington Junc- 
tion Railway (Law Reports, 6 Common Pleas 
Division, 576), decided in 1871: 

I would observe, as to these Acts of Parlia- 
ment, that they are the law of this land* and we 
do not sit here as a court of appeal from parlia- 
ment. It was once said — I think in Hobart 1 — 
that, if an Act of Parliament were to create a 
man judge in his own case, the Court might dis- 
regard it. That dictum, however, stands as a 

1 The case to which Mr. Justice Willes refers is, as stated in a note 
to the opinion, that of Day v. Savadge (Hob. Art. 87), in which that 
learned Judge is reported by himself to have said: "Even an Act of 
Parliament made against natural equity, as, to make a man judge in 
his own case, is void in itself; for, jura naturae sunt immutabilia, and 
they are leges legum." 



And a More Perfect Society of Nations 63 

warning, rather than an authority to be followed. 
We sit here as servants of the Queen and the 
legislature. Are we to act as regents over what 
is done by Parliament with the consent of the 
Queen, lords, and commons? I deny that any 
such authority exists. If an Act of Parliament 
has been obtained improperly, it is for the legis- 
lature to correct it by repealing it: but, so long 
as it exists as law, the Courts are bound to obey 
it. The proceedings here are judicial, not auto- 
cratic, which they would be if we could make 
laws instead of administering them. 

But there was nevertheless English precedent 
for the American way, with which the colonists 
were familiar, and indeed there were some three 
American precedents within the personal or pro- 
fessional knowledge of the lawyer members of 
the Convention. 

It was a principle of the English common law 
that an act of a corporation in excess of the grant 
in its articles of incorporation was ultra vires, 
and as such null and void; and it was also a 
principle of the common law, that by-laws of a 
corporation could not be valid and yet contrary 
to the laws of England, without a statement by 
the law-making power to that effect. It was 
further a principle of the common law that the 
king himself could not authorize a corporation 
to pass a by-law contrary to the law of the realm. 
The importance of these principles will appear 
if it be noted that the colonies were bodies politic 
and political corporations, and therefore any act 
of a colonial assembly repugnant to the laws of 



64 Madison's Debates in Federal Convention 

England was null, void and of no effect. It 
could be disallowed by the king in council, and a 
decision of the colonial court based upon the law 
could be reversed by the king in council. The 
leading case on the subject was that of 
Withrop v. Lechmere (7 Connecticut Colonial 
Records, 571), decided in 1728, in which the 
king in council held, upon appeal from a 
Connecticut court, that a statute of that colony 
modifying the course of inheritance con- 
trary to the common law of England was 
null and void, and the decisions of Connecti- 
cut courts based upon it were accordingly re- 
versed. The case was clear, as the charter of 
Connecticut only authorized that body politic 
"to Make, Ordain, and Establish all Manner of 
Wholesome and Reasonable Laws, Statutes, Ordi- 
nances, Directions, and. Instructions, not Contrary 
to the Laws of this Realm, of England." The 
Constitution of the Union and of each of the 
several States was in these respects like the char- 
ter of the colony. 

There were, however, three American cases 
laying down the same doctrine: Holmes v. Wal- 
ton (4 American Historical Review, 456), de- 
cided in 1780 by the Supreme Court of New Jer- 
sey; Trevett v. Wee den (Coxe, Judicial Power 
and Unconstitutional Legislation, 234), decided 
in 1786 by the Supreme Court of Rhode Island, 
and Bayard v. Singleton (1 Martin, N. C. 48). 
In the first two of these cases a law of the legis- 
lators was declared unconstitutional as contrary 



And a More Perfect Society of Nations 65 

to the constitution of the one, and the charter of 
the other, for Rhode Island continued to live 
until 1842 under the Royal Charter of 1663; 
and in the third, the court of North Carolina not 
only held a State statute contrary to the Consti- 
tution to be null and void, but also declared the 
Articles of Confederation to be the supreme law 
of that State. 

The great and leading case on the subject up- 
holding this view is that of Marbury v. Madison 
(1 Cranch, 137, 177-178, 180), decided in 1803, 
in which Chief Justice Marshall, speaking for 
the Supreme Court of the Union, declared an 
Act of Congress unconstitutional as inconsistent 
with the Constitution, saying: 

Certainly all those who have framed written 
constitutions contemplate them as forming the 
fundamental and paramount law of the nation, 
and consequently the theory of every such gov- 
ernment must be, that an act of the legislature, 
repugnant to the constitution, is void. This 
theory is essentially attached to a written consti- 
tution and is consequently to be considered, by 
this court, as one of the fundamental principles 
of our society. It is not, therefore, to be lost 
sight of in the further consideration of this sub- 
ject. 

If an act of the legislature, repugnant to the 
constitution, is void, does it, notwithstanding its 
invalidity, bind the courts, and oblige them to 
give it effect? Or, in other words, though it be 
not law, does it constitute a rule as operative as 
if it was a law? This would be to overthrow in 
fact, what was established in theory; and would 



66 Madison's Debates in Federal Convention 

seem, at first view, an absurdity too gross to be 
insisted on. It shall, however, receive a more 
attentive consideration. 

It is emphatically the province and duty of 
the judicial department, to say what the law is. 
Those who apply the rule to particular cases, 
must of necessity expound and interpret that rule. 
If two laws conflict with each other, the courts 
must decide on the operation of each. 

So if a law be in opposition to the constitu- 
tion ; if both the law and the constitution apply to 
a particular case, so that the court must either de- 
cide that case conformably to the law, disregard- 
ing the constitution; or conformably to the con- 
stitution, disregarding the law; the court must 
determine which of these conflicting rules gov- 
erns the case. This is of the very essence of judi- 
cial duty. 

If then the courts are to regard the constitution; 
and the constitution is superior to any ordinary 
act of the legislature, the constitution,' and not 
such ordinary act, must govern the case to which 
they both apply . . . 

It is also not entirely unworthy of observation, 
that in declaring what shall be the supreme law 
of the land, the constitution itself is first men- 
tioned; and not the laws of the United States, 
generally, but those only which shall be made 
in pursuance of the constitution, have that rank. 

If the judicial power only extends to judicial 
and not to political cases, it becomes of importance 
Difference to define the distinction between them. This the 
judTcia" Supreme Court has done in a long line of cases, 
and among which may be mentioned the following: 

ca'ses! 03 Foster v. Neilson (2 Peters, 253), decided in 



And a More Perfect Society of Nations 67 

1829; Williams v. Suffolk Insurance Company (13 
Peters, 415), decided in 1839; Luther v. Borden 
(7 Howard, 1), decided in 1849; the Prize Cases 
(2 Black, 635), decided in 1862; State of Missis- 
sippi v. Johnson (4 Wallace, 475), decided in 
1866; State of Georgia v. Stanton (6 Wallace, 
50), decided in 1867, and Pacific Telephone 
Company v. State of Oregon (223 U. S. 118), 
decided in 191 2. With these cases at his disposal 
the foreign as well as the American publicist can 
readily appreciate the distinction, and it is there- 
fore a confession of ignorance to maintain that 
the distinction can not be laid down by a court 
with precision. It is a manifestation of repug- 
nance to judicial decision to contend that the 
foreign government must determine this question 
for itself on the ground that a court of justice 
is incompetent in the premises. 

But if a political question must always remain 
political, and can not become justiciable so as 
to fall within the domain of the judicial power, How 
and thus within the jurisdiction of a court of political 

, , . , , . questions 

justice, the usefulness of an international court may 
is indeed limited, although within its sphere it become 

. . , . . judicial. 

may justify its creation a thousand times over 
by the decision of justiciable disputes between 
nations. A political question may, however, 
become justiciable. It is within the power of 
any two nations to make it so between themselves. 
It is therefore within the power of the nations 
of the Society of Nations to make it so between 
and among themselves. The Supreme Court of 



68 Madison s Debates in Federal Convention 

the United States has so held, and has stated the 
method with the precision of the judge and the 
vision of the statesman, in the case of The State 
of Rhode Island v. The State of Massachusetts 
(12 Peters, 657, 736-8), decided in 1838, in 
which Mr. Justice Baldwin, delivering the opin- 
ion of his brethren, said: 

The founders of our government could not 

but know, what has ever been, and is familiar 

Mr. to every statesman and jurist, that all controver- 

justice g - es between nations, are, in this sense, political, 

Baldwin. , . ,. . , , . 7 . 

and not judicial, as none but the sovereign can 
settle them. In the declaration of independence, 
the states assumed their equal station among the 
powers of the earth, and asserted that they could 
of right do, what other independent states could 
do; "declare war, make peace, contract alli- 
ances;" of consequence, to settle their contro- 
versies with a foreign power, or among them- 
selves, which no state, and no power could do for 
them. They did contract an alliance with France, 
in 1778; and with each other, in 1781 : the 
object of both was to defend and secure their 
asserted rights as states; but they surrendered 
to congress, and its appointed Court, the right 
and power of settling their mutual controversies; 
thus making them judicial questions, whether they 
arose on " boundary, jurisdiction, or any other 
cause whatever." There is neither the authority 
of law or reason for the position, that boundary 
between nations or states, is, in its nature, any 
more a political question, than any other sub- 
ject on which they may contend. None can be 
settled without war or treaty, which is by poli- 
tical power; but under the old and new confed- 



And a More Perfect Society of Nations 69 

eracy they could and can be settled by a court 
constituted by themselves, as their own substi- 
tutes, authorized to do that for states, which 
states alone could do before. We are thus pointed 
to the true boundary line between political and 
judicial power, and questions. A sovereign de- 
cides by his own will, which is the supreme law 
within his own boundary; 6 Peters 714; 9 Peters 
748; a court, or judge, decides according to the 
law prescribed by the sovereign power, and that 
law is the rule for judgment. The submission by 
the sovereigns, or states, to a court of law or 
equity, of a controversy between them, without 
prescribing any rule of decision, gives power to 
decide according to the appropriate law of the 
case; 11 Ves. 294; which depends on the sub- 
ject matter, the source and nature of the claims 
of the parties, and the law which governs them. 
From the time of such submission, the question 
ceases to be a political one, to be decided by the 
sic volo, sic jubeo, of political power; it comes 
to the court to be decided by its judgment, legal 
discretion, and solemn consideration of the rules 
of law appropriate to its nature as a judicial 
question, depending on the exercise of judicial 
power; as it is bound to act by known and settled 
principles of national or municipal jurisprudence, 
as the case requires. . . . 

These considerations lead to the definition of 
political and judicial power and questions; the 
former is that which a sovereign or state exerts 
by his or its own authority, as reprisal and con- 
fiscation; 3 Ves. 429: the latter is that which is 
granted to a court or judicial tribunal. So of 
controversies between states; they are in their 
nature political, when the sovereign or state re- 
serves to itself the right of deciding on it; 



7<3 Madison's Debates in Federal Convention 

makes it the " subject of a treaty, to be settled 
as between states independent," or " the founda- 
tion of representations from state to state." This 
is political equity, to be adjudged by the parties 
themselves, as contradistinguished from judicial 
equity, administered by a court of justice, decree- 
ing the equum et bonum of the case, let who or 
what be the parties before them. 

From this remarkable utterance it is clear that 
should the Society of Nations or any consider- 
A lesson able number of the nations be minded to take the 
Societ 6 ste P' lt wou ld not be a leap in the dark, nor would 
Nations, it be even an experiment. The Philadelphia 
Convention showed how easily the step may be 
taken, and the Supreme Court has by the prac- 
tice and procedure of a century in the matter 
of controversies between States furnished the 
precedents which men of good will may heed. 
All of the nations do not need to agree to form 
an international tribunal, for the American plan 
of a more perfect Union was to go into effect 
when nine of the States should ratify the Consti- 
tution, and it is fundamental to bear in mind 
that by the express language of the Constitution, 
only those States were to be bound which did 
so ratify it. Nor is it necessary, on the other 
hand, that the nations form themselves into a 
Union of States for all, or even for general pur- 
poses, as States united for judicial settlement will 
suffice for justiciable purposes. They merely 
need to agree by treaty, convention, compact, 
call it what you will, to submit their disputes, 



And a More Perfect Society of Nations ji 

heretofore unsettled by their diplomatic agents, 
to a court of their own creation, and therefore 
their agent for this purpose. In the impressive 
language of Mr. Justice Baldwin the dispute 
would be " settled by a court constituted by them- 
selves, as their substitutes authorized to do that 
for the States, which States alone could do be- 
fore," according to the appropriate law of the 
case, depending upon " the subject matter, the 
source and nature of the claims of the parties, 
and the law which governs them," and according 
to " its judgment, legal discretion, and solemn 
consideration of the rules of law appropriate 
to its nature as a judicial question, depending on 
the exercise of judicial power; as it is bound to 
act by known and settled principles of national 
or municipal jurisprudence as the case requires." 
The illustration by which the learned justice 
enforces his views is not only apt, but unanswer- 
able, showing the vast extent and nature of the 
domain already subjected to judicial settlement. 
Thus he says: 

It has never been contended that prize courts 
of admiralty jurisdiction, or questions before 
them, are not strictly judicial; they decide on 
questions of war and peace, the law of nations, 
treaties, and the municipal laws of the capturing 
nation, by which alone they are constituted; a 
fortiori, if such courts were constituted by a 
solemn treaty between the State under whose 
authority the capture was made, and the State 
whose citizens or subjects suffer by the capture. 
All nations submit to the jurisdiction of such 



72 Madison's Debates in Federal Convention 

courts over their subjects, and hold their final 
decrees conclusive on rights of property. 6 Cr. 

284-5. 

What had been done in the matter of prize, 
the framers of the Constitution did in other dis- 
putes between States of a kind and nature to be 
decided in a court of justice in accordance with 
Mr. Justice Baldwin's views by the simple, prac- 
ticable and highly successful expedient of extend- 
ing the judicial power of the United States — or 
if you please, of the Society of Nations, or of 
the contracting parties — " to controversies between 
two or more States," which because of this ex- 
tension become " of a Judiciary nature," to use 
Mr. Madison's expression, already quoted in an- 
other connection. 

Lest the process may seem too simple, or too 
easy, it is wise to yield the floor again to Mr. 
Justice Baldwin, who says in an earlier portion 
of the opinion of the Supreme Court in the 
Rhode Island and Massachusetts case (12 Peters, 
654, 720) : 

Those states, in their highest sovereign capacity, 
in the convention of the people thereof; on whom, 
junsdic- by the revolution, the prerogative of the crown, 
tion by and the transcendent power of parliament de- 
consent volved, in a plenitude unimpaired by any act, and 
delegated controllable by no authority, 6 Wheat. 651; 8 
authority. Wheat. 584, 88; adopted the constitution, by 
which they respectively made to the United 
States a grant of judiciary power over contro- 
versies between two or more states. By the con- 



And a More Perfect Society of Nations 73 

stitution, it was ordained that this judicial power, 
in cases where a state was a party, should be 
exercised by this Court as one of original juris- 
diction. The states waived their exemption from 
judicial power, 6 Wheat. 378, 80, as sovereigns 
by original and inherent right, by their own grant 
of its exercise over themselves in such cases, but 
which they would not grant to any inferior tri- 
bunal. By this grant, this Court has acquired 
jurisdiction over the parties in this cause, by their 
own consent and delegated authority; as their 
agent for executing the judicial power of the 
United States in the cases specified. 

Will the sovereign States of the Society of 
Nations obstinately refuse to follow the path 
beaten out and marked by the sovereign States 
of the New World, which recognized that be- 
tween diplomacy and war, which they renounced, 
there is only war? The question is not what 
existed before the meeting of the States in confer- 
ence in Philadelphia, in the year of grace 1787. 
It is no longer necessary to originate, it is only A light 
necessary to follow, for the wise men of that day wox\&. 
and generation and of that Convention made 
State suable by State, and in the course of a 
hundred years of litigation both the practice and 
procedure to be followed are spread before the 
nations, not figuratively as in an open book, 
but literally in a series of books known as the 
Reports of the Supreme Court of the United 
States, which their rulers can purchase for a 
few paltry dollars and master in their moments 
of leisure to their enduring benefit between the 



74 Madison s Debates in Federal Convention 

maneuvers of their armies and the reviews of 
their fleets. 

The desire expressed by Richard Caswell, Gov- 
ernor of the State of North Carolina, in a letter 
dated July 26, 1787, addressed to Mr. R. D. 
Spaight, a delegate of that State in attendance 
upon the Convention, for " an independent Judi- 
cial department to decide any contest that may 
happen between the United States and individual 
States & between one State and another," x has 
been more than realized. State has appeared 
against State in the Supreme Court of the States, 
and the judges of that court have decided, after 
argument of counsel and mature reflection on 
their part, many a controversy which would have 
been a cause for war if it had been between 
disunited States, instead of between members of 
united States. 

As was to be expected, from the looseness with 
which their charters were drawn, the boundaries 
of the States gave rise to litigation in the Supreme 
Court, just as they had given rise to dispute be- 
tween the colonies, and were settled by the king 
in council. There were eleven such disputes out- 
standing between and among the States when 
the government under the Constitution went into 
effect. For a number of years thereafter, the 
only controversies between the States in which the 
jurisdiction of the Supreme Court was invoked 
related to boundary, and the first final decision 

1 North Carolina State Records, xx, 753; quoted from Farrand, 
Records of the Federal Convention of 1787, vol. iii., p. 64. 



And a More Perfect Society of Nations 75 

in a case of this kind was rendered as late as 
1846, between Rhode Island and Massachusetts, 
which latter State, curiously enough, objected to 
the jurisdiction of the court, which, however and 
notwithstanding, decided in its favor. 1 As the 
result of confidence in judicial decision, some 
thirty-one of the forty-eight States now composing 
the Union have been plaintiff or defendant at 
one time or another in controversies between and 
among them. The United States, itself, has 
appeared at the bar of the Supreme Court, and 
has filed its complaint against more than one of 
these united States. From boundary disputes, 
the jurisdiction of the court has been invoked 
in cases of contract, in differences concerning 
riparian right, in matters affecting the health 
and well-being of their inhabitants; and in the 
course of time State will doubtless appear against 
State in every kind of a dispute arising between 
them, which can be presented to a court, because 
there is no limit to litigation between States recog- 
nizing the principles of justice and willing to 
conform to the rule of law. 

The eighty-odd decisions of the Supreme Court 
of the " several States," to use the language of 
the conference, in controversies between them, 
remove the question of the feasibility of such a 
tribunal from the field of academic discussion, 
making of it simply a concrete matter of worldly 
and of political wisdom. 

There is little in Madison's Notes on this " in- 

1 State of Rhode Island v. State of Massachusetts, 4 Howard, 591. 



The 

Judiciary 
in the 
Consti- 
tutional 
Con- 
vention. 



76 Madison's Debates in Federal Convention 

teresting matter " as it would have been called 
by the framers of the Constitution. Every State 
had the threefold division of sovereign powers. 
Every State had its judiciary. That the Union 
was to have one apparently went without say- 
ing — a t least there is no evidence that this phase 
of the subject was debated or that it even gave 
rise to any difference of opinion. Indeed, there 
is next to nothing on the matter of controversies 
between States. Diplomacy had failed to settle 
their many and difficult disputes, and war they 
would not have, for they were unwilling like 
Saturn to be devoured by their own offspring. 
In colonial times disputes between the colonies 
all independent of one another and all without 
tribunals of their own to which they might defer 
as of right their "Judiciary" cases, were, how- 
ever, in default of a supreme court of the colonies 
carried to the Privy Council in England, where 
they were settled by that due process of law 
which hears before it determines, and decides 
according to the law of the case. Indeed, three 
of the boundaries of Rhode Island — the fourth 
is the ocean — have been fixed, two by judicial 
decree of the Privy Council of colonial days, at 
the instance of Rhode Island against Connecticut 
and Massachusetts, 1 and one later under the more 
perfect Union, by a decision of the Supreme 
Court in a controversy between Rhode Island and 

1 Colony of Rhode Island v. Colony of Connecticut (3 Acts of the 
Privy Council, Colonial Series, 10), decided in 1727; Colony of Rhode 
Island v. Colony of Massachusetts (3 Acts of the Privy Council, 
Colonial Series, 436), decided in 1746. 



And a More Perfect Society of Nations 77 

Massachusetts. 1 The erstwhile colonists invested 
the Congress under the Articles of Confedera- 
tion with this portion of the jurisdiction for- 
merly exercised by the Privy Council, and de- 
vised a method of appointing commissioners for 
the temporary courts, who were to decide " all 
disputes and differences" then existing or after- 
ward arising " between two or more States con- 
cerning boundary, jurisdiction or any other cause 
whatever." The principles of judicial procedure 
were readily acceptable to the framers of the 
Constitution because beyond the pale of contro- 
versy. 

In the Virginian plan the national judiciary 
was to have jurisdiction of " questions which 
may involve the national peace and harmony." 
In section 3 of the Eleventh Article of the first 
draft of the Constitution reported by the Com- 
mittee of Detail on August 6th, the judicial power 
of the United States was extended to " contro- 
versies between two or more States," excepting 
therefrom such as regarded " Territory or Juris- 
diction." 2 These, as involving the sovereignty 
of the States were, by the Ninth Article of the 
draft, to be referred to the Senate, representing 
the States as such, just as they were and for a 
like reason referred to the Congress under the 
Ninth of the Articles of Confederation. This 
cause was taken up in the session of August 24th 

1 State of Rhode Island v. State of Massachusetts (4 Howard, 591), 
decided in 1846. 

2 Documentary History of the Constitution, vol. iii., p. 454- 



78 Madison 's Debates in Federal Convention 

and was quickly disposed of, Mr. Rutledge of 
South Carolina, soon to be appointed Chief Jus- 
tice of the Supreme Court, saying, according to 
Mr. Madison, that " this provision for deciding 
controversies between the States was necessary 
under the Confederation, but will be rendered 
unnecessary by the National Judiciary now to 
be established, and moved to strike it out." x Dr. 
Johnson, a wise and able delegate and experienced 
lawyer from Connecticut, who had tried and lost 
the case of Connecticut against Pennsylvania, 2 the 
one case tried by a temporary commission under 
the Articles of Confederation, seconded the 
motion, in which Mr. Sherman, likewise a 
lawyer from Connecticut, " concurred." 3 Mr. 
Williamson, a physician of North Carolina, had 
his doubts it would seem, and favored " postpon- 
ing instead of striking out, in order to consider 
whether this might not be a good provision, in 
cases where the Judiciary were interested or too 
closely connected with the parties" 4 ; Mr. Gor- 
ham, a merchant of Massachusetts, also " had 
doubts as to striking out, the Judges might be 
connected with the States being parties. He was 
inclined to think the mode proposed in the clause 
would be more satisfactory than to refer such 
cases to the Judiciary." 5 Only New Hampshire, 
North Carolina and Georgia voted for postpone- 

1 Documentary History of the Constitution, vol. iii., p. 607. 

2 131 U. S., Appendix, p. liv., decided in 1781. 

3 Documentary History of the Constitution, vol. iii., p. 607. 

4 Documentary History of the Constitution, vol. iii., p. 607. 
6 Documentary History of the Constitution, vol. iii., p. 607. 



And a More Perfect Society of Nations 79 

merit; whereupon Mr. Wilson, a distinguished 
lawyer of Pennsylvania, who had won the case 
for his State in its controversy with Connecticut 
in which Dr. Johnson had appeared for that 
State against him, " urged the striking out, the 
Judiciary being a better provision." x Only North 
Carolina and Georgia stood by Mr. Gorham, 
whose State voted against him, and the Supreme 
Court of the Union was vested with jurisdiction 
in controversies between the several States 
thereof, with only a constructive exception of 
those of " a judiciary nature " again to use Mr. 
Madison's phrase. 

There was, however, a further category of 
controversies contained in the Articles of Con- 
federation, but not submitted to the Court in the 
first draft of the Constitution. This was discov- 
ered by the keen and penetrating eye of Mr. Sher- 
man, who proposed in the session of August 27th, 
with the unanimous approval of the Convention, 
to invest the court with " jurisdiction of causes 
' between Citizens of the same State claiming 
lands under grants of different States,' according 
to the provision in the 9th art. of the Confed- 
eration." 2 

The Supreme Court therefore became the 
legitimate successor of the Privy Council and 
Congress, and because of this we are privileged to Again the 
repeat, it offers the nations a model and a hope tional sig . 
of judicial settlement of their controversies nifkance. 

1 Documentary History of the Constitution, vol. Hi., p. 608. 

2 Documentary History of the Constitution, vol. iii., p. 627. 



80 Madison's Debates in Federal Convention 

which, if they are to be got out of the way after 
the breakdown of diplomacy, can only be settled 
by war. If the nations only will, they may make 
a union of any of their number for judicial settle- 
ment, and that by simply a treaty, convention, 
compact or agreement, creating the court, grant- 
ing it jurisdiction, defining its procedure, to be 
set in motion by the plaintiff, leaving the execu- 
tion of the judgment as in the case of an arbitral 
award or of a decision of our Supreme Court to 
the good faith of the contracting parties, and it 
is done. The example of the American States 
shows the way to do it. The procedure of the 
court of the several States shows the feasibility 
of doing it. The agony of Europe shows that it 
must be done if the blood and treasure of the 
future are to be saved from the catastrophes of 
the past. 

And what is, after all, this more perfect Union 

of the American States, whose formation Mr. 

The more Madison records in his Notes, that it should be 

perfect jjeld as an examp i e or as a model to the 

union or r r . . 

Society of Society of Nations? Let the Articles of Union 
Nations. answer ma t it was ordained, as specifically set 
forth in the Preamble, " to establish Justice, 
insure domestic Tranquillity, provide for the 
common defence, promote the general Welfare, 
and secure the Blessings of Liberty to our- 
selves and our Posterity." What the States 
of the New World have done, the nations of 
the Old World can afford to consider, even 
although they be unwilling or find it impos- 



And a More Perfect Society of Nations 81 

sible to endow their union, society, association, 
or league with such extensive powers or preroga- 
tives. 

The problem which faced the States faces the 
nations. How can each of them divest itself of 
certain sovereign powers to be used for the 
common good of all, not in the interest of any 
one, without merging the nations in a union in 
which they shall become as provinces? Were 
not the Americans of the several States one 
people, it may be asked? Was not the union 
made by the people as such, irrespective of 
States, forming a nation with all the sovereign 
powers of such, and in which the States are as 
counties, or shires, departments or provinces 
of a unitary nation? To this it may be briefly 
said that the union is one of States; that the 
word " nation " is not to be found in the Consti- 
tution; that the people of the States, acting as 
citizens of the States and within State lines, not 
the people generally compounded as one mass, 
created the more perfect union, as the Constitu- 
tion says, and that the States which compose this 
union are States of a composite nation, if the 
term " nation " must be used in preference to 
the language of the Constitution. 

But however this may be, the nations do not 
need to go so far as the States of the American 
Union. They may prefer that the society of 
which they are the component parts shall remain 
a very loose union. But the framework is at 
hand, for is not the Society of Nations already 



82 Madison s Debates in Federal Convention 

Certain a union which needs only to become conscious of 
parallels. - tg ex i s t ence to be made more perfect? And 
however many or few the powers granted by 
the nations, it will assuredly, indeed inevitably, 
be more limited than the more perfect union of 
the American States, even though that was and 
still is a limited union. Is not the Hague Peace 
Conference something very much like a legislature 
ad referendum — a body that drafts and proposes 
projects for the nations to accept or reject? Is 
not the so-called Permanent Court of Arbitration 
something like the temporary commissions under 
the Articles of Confederation and a first step 
to a judiciary of the Society of Nations " accessi- 
ble to all, in the midst of the independent 
Powers "? 

If some committee were thought desirable be- 
tween the regular and stated meetings of the con- 
ference, the so-called Permanent Administrative 
Council would suffice, with such added functions 
as experience should suggest, " composed," as it 
is, " of the diplomatic representatives of the sig- 
natory Powers accredited to The Hague and of 
the Netherland Minister for Foreign Affairs " as 
President," to be charged with the direction and 
control of such business of the Union of Society 
as the contracting Powers might consider it safe 
to entrust to a council of this nature. But if the 
Society of Nations be consciously reorganized or 
strengthened, such limited powers as it may pos- 
sess should operate upon the individual as in the 
more perfect Union of the American States, by 



And a More Perfect Society of Nations 83 

giving the provisions of the Convention the force 
of law, to be ratified if need be by the people 
of the States, thus taxing a person, not a nation, 
with the performance of a duty, or abstinence 
from an act, instead of a State, as otherwise the 
problem of coercing a country — that is to say, 
war — might arise. 

No State if possible, certainly no powerful one, 
should be invested with the right or duty of 
supervising or executing the terms of the agree- 
ment of the nations. The success of the American 
experiment is, it is believed, due in no small 
measure to the fact that no State of the Union 
is President thereof, and also to the fact that no 
limited power of the union is placed under the 

, ~ 1 Neither 

guarantee or protection of any one State, such as nat i nai 
Massachusetts, Pennsylvania, or Virginia, but in fj 

• 1 • a federal. 

a government of the Union, without territory of 
its own other than a few square miles constituting 
the District of Columbia, in which the govern- 
ment of the Union lives, moves and has its being. 
Inevitably or ordinarily the primus inter pares 
ends by swallowing up its equals of the begin- 
ning. 

Of the nature of the Union, let Mr. Madison 
speak, who had more to do with its making than 
any one man, but whose opinion in any event 
is of itself entitled to great and deserved weight. 
In the thirty-eighth number of The Federalist, a. 
series of papers written by Mr. Hamilton, Mr. 
Madison and Mr. Jay, shortly after the adjourn- 
ment of the Convention and in order to influence 



84 Madison's Debates in Federal Convention 



The 

Preamble 
and its 
limita- 
tions. 



the States to ratify the Constitution, Mr. Madison 
said : 

The proposed Constitution, therefore, is, in 
strictness, neither a national nor a federal Con- 
stitution, but a composition of both. In its 
foundation it is federal, not national; in the 
sources from which the ordinary powers of the 
government are drawn, it is partly federal and 
partly national; in the operation of these powers, 
it is national, not federal: in the extent of them, 
again, it is federal, not national ; and, finally, in the 
authoritative mode of introducing amendments, 
it is neither wholly federal nor wholly national. 

We Americans would like to think and to 
express the thought, although it may seem im- 
modest, perhaps even boastful, that the Consti- 
tution of the more perfect Union has the virtue 
and strength of each, with the vice and weakness 
of neither. 

Foreign students of our Constitution are apt to 
be confused by the phraseology of the Pre- 
amble to that instrument. The opening sentence 
of, or Preamble to the Constitution is a 
flourish of rhetoric due to a facile pen, not a 
grant of power made by the States, which is only 
conveyed in the body of the Constitution. When 
the first draft thereof was reported in the session 
of August 6th, the opening sentence and the First 
Article, later wisely and happily compressed into 
the Preamble, were thus worded: 

We the people of the States of New Hampshire, 
Massachusetts, Rhode-Island and Providence 



And a More Perfect Society of Nations 85 

Plantations, Connecticut, New- York, New-Jersey, 
Pennsylvania, Delaware, Maryland, Virginia, 
North-Carolina, South-Carolina, and Georgia, do 
ordain, declare, and establish the following Con- 
stitution for the Government of Ourselves and our 
Posterity. 

The stile of the Government shall be "The 
United States of America ". x 

Under date of August 7th, Mr. Madison 
informs us that " the preamble of the Report was 
agreed to nem. con. So were Art. I & II," = the 
latter to the effect that the government was to 
consist of a legislative, executive _and judicial 
department. Without further discussion and with 
no changes in the Preamble and First Article, the 
Constitution as amended after weeks of debate 
was submitted to a Committee on Style and 
Arrangement, elected by ballot in the session of 
September 8th, consisting " of M- Johnson, M' 
Hamilton, M- Gov^ Morris, M^ Madison and M T - 
King". 3 

This was an excellent committee and the pres- 
ence upon it of Mr. Madison — the only committee 
of which he was a member — made it a certainty 
that no change of style would affect the sense 
of the document, with which he was more 
familiar than any other member could be, if 
only from his self-imposed duty as reporter. 

The Convention adjourned Saturday, Septem- 
ber 8th, shortly after the appointment of the 



1 Documentary History of the Constitution, vol. ii 

2 Documentary History of the Constitution, vol. ii 

3 Documentary History of the Constitution, vol. ii 



p. 444. 
p. 458. 
p. 710. 



86 Madison s Debates in Federal Convention 

committee, and met on Monday, the ioth, which 
Messrs. Hamilton, King and Madison attended 
and in whose proceedings they participated. 
Messrs. Johnson and Gouverneur Morris were 
either absent or failed to take part in the 
proceedings; they were probably busied with 
the " stile " and arrangement of the Constitu- 
tion. 

On Tuesday, the nth, the committee reported 
the Constitution with the Preamble which 
every schoolboy of the " Several States " knows 
by heart. There was no debate on it. The dele- 
gates probably were mightily pleased with it, as 
Gouverneur Morris, who is responsible for the 
style of the instrument, was an accomplished lit- 
terateur and made of the Constitution a piece of 
literature, just as Thomas Jefferson did with the 
J^ lt " Declaration of Independence. But the Preamble 

overcome betrays not merely the hand of the stylist. It 
Preamble. met an ^ overcame a serious and embarrassing dif- 
ficulty. The original draft of August 6th, and 
the otherwise amended draft as submitted to the 
Committee on Style and Arrangement, spoke in 
the name and in behalf of the people of the States, 
enumerated in their geographical order from 
north to south, beginning with New Hampshire 
and ending with Georgia. The headstrong little 
commonwealth of Rhode Island and Providence 
Plantations was included, in spite of the fact that 
it had not sent delegates to the Convention and 
might not ratify the Constitution. Fortunately, 
this difficulty became immaterial for the purposes 



And a More Perfect Society of Nations 87 

of the Preamble by the simple expedient of insert- 
ing the word " United " before " States " and 
omitting the names of the States from the balance, 
so that instead of reading, " We, the people of the 
States of New Hampshire ", etc., the Constitu- 
tion as amended would read, "We, the people 
of the United States." A difficulty of a not dis- 
similar kind had .presented itself in the early 
days of the Convention to which the reader's 
attention has already been called and had been 
solved in much the same way. The Virginian 
plan had proposed a national legislature, a 
national executive and a national judiciary, and 
the Committee of the Whole reported to the Con- 
vention, under date of June 13th, its opinion that 
" a national Governm- ought to be established, 
consisting of supreme Legislative, Executive & 
Judiciary." 1 A week later, on June 20th, Mr. 
Ellsworth of Connecticut, seconded by Mr. Gor- 
ham of Massachusetts, moved to alter it so as to 
run " that the Government of the United States 
ought to consist of a supreme Legislative, Execu- 
tive and Judiciary." In behalf of his motion, 
which commended itself to the Convention, as 
it was unanimously adopted, he said, as reported 
by Mr. Madison, that it " would drop the word 
national and retain the proper title of 'The 
United States.' " 2 

The Committee on Style and Arrangement, 
apparently agreeing with Mr. Ellsworth, whose 

1 Documentary History of the Constitution, vol. iii., p. 120. 

2 Documentary History of the Constitution, vol. iii., p. 166. 



88 Madison s Debates in Federal Convention 

colleague Dr. Johnson, likewise of Connecticut, 
was Chairman of the committee, also thought 
the title to be the " United States," and so think- 
ing substituted it in lieu of the names of the thir- 
teen. This happy modification made the Pream- 
ble ample, even although the thirteen original 
States should sprout like Jesse's staff. This con- 
jecture, for the matter was apparently too tri- 
fling to be mentioned by Mr. Madison, by any 
member of the committee, or by any delegate to 
the conference, is substantiated by Mr. Chief 
Justice Marshall, who regarded the American 
Lines people as acting in States, not as " compounded 

between rr ° »jl x. 

the states into one common mass ; and he even went so far 
as to say in his judicial masterpiece, what indeed 
one must be very sure of himself to say, that " no 
political dreamer was ever wild enough to think 
of breaking down the lines which separate the 
States." 

But whatever the true explanation of the 
change of phraseology may be, the Preamble is 
in other respects a flourish of the pen, and con- 
veys no power to the " United States " which is 
not embodied in express or implied terms in the 
granting clauses of the Constitution. We do not 
need, as in the above case, to resort to conjecture, 
inasmuch as Mr. Justice Harlan, an advocate of 
" consolidation," to use the expression with which 
Mr. Madison and his contemporaries were famil- 
iar, said for the Supreme Court of the United 
States, in the case of Jacobson v. Massachusetts 
(197 U. S. 11,227), decided in 1905. 



And a More Perfect Society of Nations 89 

Although that Preamble indicates the general 
purposes for which the people ordained and estab- 
lished the Constitution, it has never been regarded 
as the source of any substantive power conferred 
on the Government of the United States or on 
any of its Departments. Such powers embrace 
only those expressly granted in the body of the 
Constitution and such as may be implied from 
those so granted. Although, therefore, one of the 
declared objects of the Constitution was to secure 
the blessings of liberty to all under the sover- 
eign jurisdiction and authority of the United 
States, no power can be exerted to that end by 
the United States unless, apart from the Pream- 
ble, it be found in some express delegation of 
power or in some power to be properly implied 
therefrom. 



The American Union Interpreted by the 
Supreme Court 

In the case of Martin v. Hunter (1 Wheaton, 
304, 329), decided in 1816, Mr. Justice Story felt 
called upon to consider the origin, the nature, 
and the purpose of the Constitution, and, speak- 2 b -' e p t of 
ing for the court, he declared in language that stitution. 
can neither be paraphrased nor improved: 

The object of the constitution was to establish 
three great departments of government; the legis- 
lative, the executive, and the judicial depart- 
ments. The first was to pass laws, the second, to 
approve and execute them, and the third to 
expound and enforce them. 



90 Madison's Debates in Federal Convention 

Admitting that Mr. Justice Story's statement 
is correct, of the object which the framers of the 
Constitution had in mind, the result can in like 
manner best be expressed in the language of the 
Supreme Court, for that tribunal has the final 
word in defining, construing and applying the 
Constitution of the United States. Of the many 
statements of a like nature in which the reports 
of the Supreme Court abound, the following, 
running over more than a century, can be taken 
as representing the views of that august tribunal 
from the organization of the government under 
the Constitution to the present day. 

Thus, Mr. Justice Iredell said, in Chisholm v. 
Georgia (2 Dallas, 419, 435), decided in 1793: 

Every State in the Union, in every instance 
where its sovereignty has not been delegated to 
the United States, I consider to be as compleatly 
sovereign, as the United States are in respect to 
the powers surrendered. The United States are 
sovereign as to all the powers of Government 
actually surrendered: Each State in the Union 
is sovereign as to all the powers reserved. It 
must necessarily be so, because the United States 
have no claim to any authority but such as the 
States have surrendered to them: Of course the 
part not surrendered must remain as it did before. 

Mr. Justice Story further said, in the case of 
Martin v. Hunter (1 Wheaton, 304, 325-326), 
decided in 1816: 

On the other hand, it is perfectly clear that 
the sovereign powers vested in the state govern- 



And a More Perfect Society of Nations 91 

ments, by their respective constitutions, remained 
unaltered and unimpaired, except so far as they 
were granted to the government of the United 
States. 

These deductions do not rest upon general 
reasoning, plain and obvious as they seem to be. 
They have been positively recognised by one of 
the articles in amendment of the constitution, 
which declares, that " the powers not delegated 
to the United States by the constitution, nor 
prohibited by it to the states, are reserved to the 
states respectively, or to the people." 

The government, then, of the United States can 
claim no powers which are not granted to it by 
the constitution, and the powers actually granted, 
must be such as are expressly given, or given by 
necessary implication. 

Mr. Chief Justice Marshall, in delivering the 
unanimous opinion of the court over which he 
presided, observed in the case of McCulloch v. 
Maryland (4 Wheaton, 316, 410), decided in 
1 819, that: 

In America, the powers of sovereignty are 
divided between the government of the Union, 
and those of the States. They are each sovereign, 
with respect to the objects committed to it, and 
neither sovereign with respect to the objects com- 
mitted to the other. 

Mr. Chief Justice Chase, upon whose sturdy 
shoulders the mantle of the great Chief Justice 
fell, impressively stated, speaking for the court 
in the case of Texas v. White (7 Wallace, 700, 
725), decided in 1868: 



92 Madison's Debates in Federal Convention 

Under the Articles of Confederation each 
State retained its sovereignty, freedom, and inde- 
pendence, and every power, jurisdiction, and right 
not expressly delegated to the United States. 
Under the Constitution, though the powers of the 
States were much restricted, still, all powers not 
delegated to the United States, nor prohibited 
to the States, are reserved to the States respec- 
tively, or to the people. And we have already 
had occasion to remark at this term, that " the 
people of each State compose a State, having its 
own government, and endowed with all the func- 
tions essential to separate and independent exis- 
tence," and that "without the States in union, 
there could be no such political body as the 
United States." Not only, therefore, can there 
be no loss of separate and independent autonomy 
to the States, through their union under the Con- 
stitution, but it may be not unreasonably said 
that the preservation of the States, and the main- 
tenance of their governments, are as much within 
the design and care of the Constitution as the 
preservation of the Union and the maintenance of 
the National government. The Constitution, in 
all its provisions, looks to an indestructible Union, 
composed of indestructible States. 

Mr. Justice Nelson held, in the case of Collec- 
tor v. Day (n Wallace, 113, 124), decided two 
years later, that: 

The general government, and the States, 
although both exist within the same territorial 
limits, are separate and distinct sovereignties, 
acting separately and independently of each other, 
within their respective spheres. The former in 
its appropriate sphere is supreme; but the States 



And a More Perfect Society of Nations 93 

within the limits of their powers not granted, or, 
in the language of the tenth amendment, " re- 
served," are as independent of the general gov- 
ernment as that government within its sphere is 
independent of the States. 

And finally, Mr. Justice Brewer, speaking for 
the court in the case of South Carolina v. United 
States (199 U. S. 437, 448), decided in 1905, thus 
summed up the results of a century of judicial 
opinion on the relation of the Union to the States 
and the role of a judiciary in the American sys- 
tem: 

We have in this Republic a dual system of gov- 
ernment, National and state, each operating 
within the same territory and upon the same per- 
sons; and yet working without collision, because 
their functions are different. There are certain 
matters over which the National Government has 
absolute control and no action of the States can 
interfere therewith, and there are others in which 
the State is supreme, and in respect to them the 
National Government is powerless. To preserve 
the even balance between these two governments 
and hold each in its separate sphere is the 
peculiar duty of all courts, preeminently of this 
— a duty oftentimes of great delicacy and diffi- 
culty. 



94 Madison's Debates in Federal Convention 



In Conclusion 

The men meeting in conference in Philadelphia 
in the summer of 1787, acting under general 
instructions — for they could not hope to receive 
specific instructions on the many and vexed ques- 
tions which confronted them from day to day — 
faced indeed a more colossal task than they them- 
selves knew, for they not only made a Constitu- 
tion for twelve States but one which meets the 
needs of a larger union than they could have 
anticipated. This Union, composed today of 
forty-eight States, equals in number the member- 
ship of the Society of Nations; and the official 
delegates of twelve of the sovereign, free and 
independent States of America met and solved 
in their conference the problems with which the 
official delegates of the States composing the 
Society of Nations will be confronted when one 
day their official delegates meet in conference 
and resolve themselves into a Committee on the 
State of the Society. 

The framers of the Constitution recognized that 
they should only hope to form a Union for limited 
purposes and that the Government of this Union 
could only consist of enumerated powers. They 
created a legislature, not to pass statutes without 
let or hindrance, but to legislate upon the sub- 
jects enumerated in the grant of legislative power 
and to pass such laws as might be necessary or 
proper under the grant of power and of powers 



And a More Perfect Society of Nations 95 

contained in the Constitution. They created an 
executive to carry into effect the laws thus passed 
in pursuance of the legislative grant, to exercise 
the rights and to perform the duties appertain- 
ing to his office. They created a judiciary to 
interpret the Constitution, to keep each govern- 
ment within its proper sphere, thus preventing 
a collision between the different branches, and 
confining the Union of limited powers and the 
States with their reserved powers within their 
appropriate spheres. They made the Constitu- 
tion of the United States the law of the Union 
and of each State, so successfully indeed that 
the right and the duty of each can be and is fixed 
by judicial decision. To do this they had to 
define and to separate general from particular 
or local interests, vesting the Union with the 
former and leaving the latter with the States. 
They had to overcome the interests of the sections, 
which were, in some cases, so opposed as to be 
irreconcilable, for freedom on the one hand and 
slavery on the other could not be reconciled per- 
manently. 

They were met on the very threshold of the 
conference itself with the conflict between the 
large and the small States, and they settled it in 
the closing days of the Convention to the satis- 
faction of the contending parties. They did not, 
indeed, have all the difficulties of language, of 
race, of religion or traditions confronting larger 
international conferences, but more than one 
language was then and is now spoken on the 



96 Madison's Debates in Federal Convention 

Atlantic seaboard, and the colonists were drawn 
from many countries and from different races. 
Religions were as various then as now, and the 
traditions were not the traditions of any one 
country. These differences, had they existed in 
a very marked degree, would have made the 
solution more difficult but not insurmountable to 
men of good will intent on a union of their 
States for general purposes. The experience of 
Switzerland, extending over many centuries, 
where all of these problems have presented them- 
selves, and where they have been overcome to 
such a degree that the Switzerland of today has 
maintained its neutrality completely surrounded 
by belligerents of the very nationalities of which 
their Confederation is formed, has amply shown 
the accuracy of this observation. 

The members of the Federal Convention were 
well aware that the labor of their hands might be 
rejected by the Conventions of the several States 
to which the Constitution was to be referred for 
ratification, and this fear is evidenced by the last 
resolution adopted in the last session of the Con- 
vention; that the President "retain the Jour- 
nal and other papers, subject to the order of 
Congress, if ever formed under the Constitu- 
tion." 

The Constitution was a completed instrument, 

and lacked only the signatures of the delegates 

Thesis- approving it. "Whilst the last members were 

signing it," Mr. Madison says, " Doct? Franklin 

looking towards the President's Chair, at the 



ing Sun. 



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And a More Perfect Society of Nations 97 

back of which a rising sun happened to be 
painted, observed to a few members near him, 
that Painters had found it difficult to distinguish 
in their art a rising from a setting sun. " I have," 
said he, " often and often in the course of the Ses- 
sion, and the vicissitudes of my hopes and fears 
as to its issue, looked at that behind the President 
without being able to tell whether it was rising 
or setting: But now at length I have the hap- 
piness to know that it is a rising and not a setting 
Sun." 

It is still a rising sun. 

The imperfect union under the Articles gave 
way to the more perfect union of the Constitution, 
just as the imperfect union of the Society of 
Nations may give way to a more perfect associa- 
tion devised in a conference of nations, just as __ _ 

Tv/r 1 The Con " 

in the case of the American States. More than vention 
a beginning has been made. A Society of Nations p^** 
is not a theory, it is a fact stated in unmistakable Settlement 
terms in the preamble to the Pacific Settlement nat ionai" 
Convention, drafted in 1899 by the official dele- Disputes, 
gates of twenty-six States meeting in conference 
and acting under instructions. This Convention 
declared their governments as: 

Animated by a strong desire to concert for the 
maintenance of the general peace; 

Resolved to second by their best efforts the 
friendly settlement of international disputes; 

Recognizing the solidarity which unites the 
members of the society of civilized nations; 

Desirous of extending the empire of law and 



Benjamin 
Franklin's 
forecast. 



98 Madison s Debates in Federal Convention 

of strengthening the appreciation of international 
justice; 

Convinced that the permanent institution of a 
Court of Arbitration, accessible to all, in the 
midst of the independent Powers, will contribute 
effectively to this result; 

Having regard to the advantages attending the 
general and regular organization of arbitral pro- 
cedure; 

Sharing the opinion of the august initiator of 
the International Peace Conference that it is expe- 
dient to record in an international agreement the 
principles of equity and right on which are based 
the security of States and the welfare of peoples. 

That the nations of Europe could be drawn 
into closer relations and that the experience of the 
United States might serve as a precedent for 
such an interesting event, was foreseen, and the 
process stated, by Dr. Franklin in a letter which 
he wrote to a correspondent in Europe under date 
of October 22, 1787: 

I send you enclos'd the propos'd new Federal 
Constitution for these States. I was engag'd 4 
Months of the last Summer in the Convention 
that form'd it. It is now sent by Congress to the 
several States for their Confirmation. If it suc- 
ceeds, I do not see why you might not in Europe 
carry the Project of good Henry the 4th into Exe- 
cution, by forming a Federal Union and One 
Grand Republick of all its different States & 
Kingdoms; by means of a like Convention; for 
we had many interests to reconcile. 1 

1 Benjamin Franklin to Mr. Grand, October 22, 1787 (Documentary 
History of the Constitution, vol. iv., pp. 341-342). 



And a More Perfect Society of Nations 99 

The Constitution of the more perfect Union 
has succeeded, and if different States and king- 
doms should be inclined to substitute the regu- Madison 
lated interdependence of States for their unregu- liberty of 
lated independence they need only turn for light the world, 
and leading to the little man of Montpelier, who 
has preserved for all time an exact account of 
what took place in the conference of the States 
in Philadelphia in the summer of 1787. Although 
" the drudgery " of the undertaking " almost 
killed him," it is fortunately a fact that, " by an 
authentic exhibition of the objects, the opinions 
and the reasonings from which the new system of 
government was to receive its peculiar structure 
and organization," we are now aware, as Mr. 
Madison then was, " of the value of such a contri- 
bution to the fund of materials for the history of 
the Constitution, on which would be staked the 
happiness of a young people, great even in its 
infancy and possibly the cause of liberty through- 
out the world." 



0352 



APPENDIX 



THE DECLARATION OF INDEPENDENCE— 

1776 x 

In Congress, July 4, 1776 

The unanimous Declaration of the thirteen united 
States of America 

When, in the Course of human events, it becomes 
necessary for one people to dissolve the political bands 
which have connected them with another, and to assume 
among the Powers of the earth, the separate and equal 
station to which the Laws of Nature and of Nature's 
God entitle them, a decent respect to the opinions of 
mankind requires that they should declare the causes 
which impel them to the separation. 

We hold these truths to be self-evident, that all men 
are created equal, that they are endowed by their Cre- 
ator with certain unalienable Rights, that among these 
are Life, Liberty and the pursuit of Happiness. That to 
secure these rights, Governments are instituted among 
Men, deriving their just powers from the consent of the 
governed, That whenever any Form of Government 
becomes destructive of these ends, it is the Right of 
the People to alter or abolish it, and to institute 
new Government, laying its foundation on such prin- 
ciples and organizing its powers in such form, as to 
them shall seem most likely to effect their Safety and 
Happiness. Prudence, indeed, will dictate that Gov- 
ernments long established should not be changed for 
light and transient causes; and accordingly all experi- 
ence hath shown, that mankind are more disposed to 

1 Revised Statutes of the United States, 1878, pp. 3-6. 



104 Madison's Debates in Federal Convention 

suffer, while evils are sufferable, than to right them- 
selves by abolishing the forms to which they are accus- 
tomed. But when a long train of abuses and usurpa- 
tions, pursuing invariably the same Object evinces a de- 
sign to reduce them under absolute Despotism, it is 
their right, it is their duty, to throw off such Govern- 
ment, and to provide new Guards for their future 
security. — Such has been the patient sufferance of these 
Colonies; and such is now the necessity which constrains 
them to alter their former Systems of Government. 
The history of the present King of Great Britain is a 
history of repeated injuries and usurpations, all having 
in direct object the establishment of an absolute 
Tyranny over these States. To prove this, let Facts 
be submitted to a candid world. 

He has refused his Assent to Laws, the most whole- 
some and necessary for the public good. 

He has forbidden his Governors to pass Laws of 
immediate and pressing importance, unless suspended 
in their operation till his Assent should be obtained; 
and when so suspended, he has utterly neglected to 
attend to them. 

He has refused to pass other Laws for the accommo- 
dation of large districts of people, unless those people 
would relinquish the right of Representation in the 
Legislature, a right inestimable to them and formidable 
to tyrants only. 

He has called together legislative bodies at places 
unusual, uncomfortable, and distant from the depository 
of their Public Records, for the sole purpose of 
fatiguing them into compliance with his measures. 

He has dissolved Representative Houses repeatedly, 
for opposing with manly firmness his invasions on the 
rights of the people. 



And a More Perfect Society of Nations 105 

He has refused for a long time, after such dissolu- 
tions, to cause others to be elected; whereby the Legis- 
lative Powers, incapable of Annihilation, have returned 
to the People at large for their exercise; the State 
remaining in the mean time exposed to all the dangers 
of invasion from without, and convulsions within. 

He has endeavoured to prevent the population of 
these States; for that purpose obstructing the Laws 
for Naturalization of Foreigners; refusing to pass 
others to encourage their migration hither, and 
raising the conditions of new Appropriations of 
Lands. 

He has obstructed the Administration of Justice, by 
refusing his Assent to Laws for establishing Judiciary 
Powers. 

He has made Judges dependent on his Will alone, 
for the tenure of their offices, and the amount and pay- 
ment of their salaries. 

He has erected a multitude of New Offices, and sent 
hither swarms of Officers to harass our People, and 
eat out their substance. 

He has kept among us, in times of peace, Standing 
Armies without the consent of our legislature. 

He has affected to render the Military independent 
of and superior to the Civil Power. 

He has combined with others to subject us to a 
jurisdiction foreign to our constitution, and unacknowl- 
edged by our laws; giving his Assent to their acts of 
pretended Legislation: 

For quartering large bodies of armed troops 
among us : 

For protecting them, by a mock Trial, from Punish- 
ment for any Murders which they should commit on the 
Inhabitants of these States: 



106 Madison s Debates in Federal Convention 

For cutting off our Trade with all parts of the 
world : 

For imposing taxes on us without our Consent: 

For depriving us, in many cases, of the benefits of 
Trial by Jury : 

For transporting us beyond Seas to be tried for pre- 
tended offences: 

For abolishing the free System of English Laws in 
a neighbouring Province, establishing therein an Arbi- 
trary government, and enlarging its Boundaries so as 
to render it at once an example and fit instrument for 
introducing the same absolute rule into these Colonies : 

For taking away our Charters, abolishing our most 
valuable Laws, and altering fundamentally the Forms 
of our Governments : 

For suspending our own Legislatures, and declaring 
themselves invested with Power to legislate for us in 
all cases whatsoever. 

He has abdicated Government here, by declaring 
us out of his Protection and waging War against us. 

He has plundered our seas, ravaged our Coasts, 
burnt our towns, and destroyed the lives of our people. 

He is at this time transporting large armies of for- 
eign mercenaries to compleat the works of death, deso- 
lation and tyranny, already begun with circumstances of 
Cruelty & perfidy scarcely paralleled in the most bar- 
barous ages, and totally unworthy the Head of a civil- 
ized nation. 

He has constrained our fellow Citizens taken Cap- 
tive on the high Seas to bear Arms against their Coun- 
try, to become the executioners of their friends and 
Brethren, or to fall themselves by their Hands. 

He has excited domestic insurrections amongst us, 
and has endeavoured to bring on the inhabitants of our 



And a More Perfect Society of Nations 107 

frontiers, the merciless Indian Savages, whose known 
rule of warfare, is an undistinguished destruction of all 
ages, sexes and conditions. 

In every stage of these Oppressions We have Peti- 
tioned for Redress in the most humble terms: Our 
repeated Petitions have been answered only by repeated 
injury. A Prince, whose character is thus marked by 
every act which may define a Tyrant, is unfit to be the 
ruler of a free People. 

Nor have We been wanting in attention to our Brit- 
ish brethren. We have warned them from time to 
time of attempts by their legislature to extend an un- 
warrantable jurisdiction over us. We have reminded 
them of the circumstances of our emigration and settle- 
ment here. We have appealed to their native justice 
and magnanimity, and we have conjured them by the 
ties of our common kindred to disavow these usurpa- 
tions, which would inevitably interrupt our connec- 
tions and correspondence. They too have been deaf 
to the voice of justice and of consanguinity. We must, 
therefore, acquiesce in the necessity, which denounces 
our Separation, and hold them, as we hold the rest of 
mankind, Enemies in War, in Peace Friends. 

We, therefore, the Representatives of the united 
States of America, in General Congress, Assembled, 
appealing to the Supreme Judge of the world for the 
rectitude of our intentions, do, in the Name, and by 
Authority of the good People of these Colonies, 
solemnly publish and declare, That these United Col- 
onies are, and of Right ought to be Free and Independ- 
ent States; that they are Absolved from all Allegiance 
to the British Crown, and that all political connection 
between them and the State of Great Britain, is and 
ought to be totally dissolved; and that as Free and 



108 Madison's Debates in Federal Convention 

Independent States, they have full Power to levy War, 
conclude Peace, contract Alliances, establish Commerce, 
and to do all other Acts and Things which Independent 
States may of right do. And for the support of this 
Declaration, with a firm reliance on the Protection of 
Divine Providence, we mutually pledge to each other 
our Lives, our Fortunes and our sacred Honor. 

JOHN HANCOCK. 

New Hampshire 

Josiah Bartlett Matthew Thornton 

Wm. Whipple 

Massachusetts Bay 

Saml. Adams Robt. Treat Paine 

John Adams Elbridge Gerry 

Rhode Island 
Step. Hopkins William Ellery 

Connecticut 

Roger Sherman Wm. Williams 

Sam'el Huntington Oliver Wolcott 

New York 

Wm. Floyd Frans. Lewis 

Phil. Livingston Lewis Morris 

New Jersey 

Richd. Stockton John Hart 

Jno. Witherspoon Abra. Clark 

Fras. Hopkinson 



And a More Perfect Society of Nations 109 

Pennsylvania 
Robt. Morris Jas. Smith 

Benjamin Rush Geo. Taylor 

Benja. Franklin James Wilson 

John Morton Geo. Ross 

Geo. Clymer 

Delaware 
Caesar Rodney Tho. M'Kean 

Geo. Read 

Maryland 
Samuel Chase Thos. Stone 

Wm. Paca Charles Carroll of 

Carrollton 

Virginia 
George Wythe Thos. Nelson, Jr. 

Richard Henry Lee Francis Lightfoot Lee 
Th. Jefferson Carter Braxton 

Benja. Harrison 

North Carolina 
Wm. Hooper John Penn 

Joseph Hewes 

South Carolina 
Edward Rutledge Thomas Lynch, Junr. 

Thos. Heyward, Junr. Arthur Middleton 

Georgia 
Button Gwinnett Geo. Walton 

Lyman Hall 



ARTICLES OF CONFEDERATION— 1777 1 

To all to Whom these Presents shall come, we the un- 
dersigned Delegates of the States affixed to our 
Names send greeting. 

Whereas the Delegates of the United States of 
America in Congress assembled did on the fifteenth day 
of November in the Year of our Lord One Thousand 
Seven Hundred and Seventy-seven, and in the Second 
Year of the Independence of America agree to certain 
articles of Confederation and perpetual Union between 
the States of Newhampshire, Massachusetts-Bay, 
Rhodeisland and Providence Plantations, Connecticut, 
New York, New Jersey, Pennsylvania, Delaware, 
Maryland, Virginia, North-Carolina, South-Carolina 
and Georgia in the Words following, viz. 

" Articles of Confederation and perpetual Union be- 
tween the States of Newhampshire, Massachusetts- 
bay, Rhodeisland and Providence Plantations, Con- 
necticut, New-York, New-Jersey, Pennsylvania, 
Delaware, Maryland, Virginia, North-Carolina, 
South-Carolina and Georgia. 

Article I. The stile of this confederacy shall be 
" The United States of America." 

Article II. Each State retains its sovereignty, free- 
dom and independence, and every power, jurisdiction 
and right, which is not by the confederation expressly 
delegated to the United States, in Congress assembled. 

1 Revised Statutes of the United States, pp. 7-12. 



Madison's Debates in Federal Convention in 

Article III. The said States hereby severally enter 
into a firm league of friendship with each other, for 
their common defence, the security of their liberties, 
and their mutual and general welfare, binding them- 
selves to assist each other, against all force offered to, 
or attacks made upon them, or any of them, on account 
of religion, sovereignty, trade, or any other pretence 
whatever. 

Article IV. The better to secure and perpetuate 
mutual friendship and intercourse among the people 
of the different States in this Union, the free inhabitants 
of each of these States, paupers, vagabonds and fugi- 
tives from justice excepted, shall be entitled to all priv- 
ileges and immunities of free citizens in the several 
States; and the people of each State shall have free 
ingress and regress to and from any other State, and 
shall enjoy therein all the privileges of trade and com- 
merce, subject to the same duties, impositions and re- 
strictions as the inhabitants thereof respectively, pro- 
vided that such restrictions shall not extend so far as 
to prevent the removal of property imported into any 
State, to any other State of which the owner is an in- 
habitant; provided also that no imposition, duties or 
restriction shall be laid by any State, on the property 
of the United States, or either of them. 

If any person guilty of, or charged with treason, 
felony, or other high misdemeanor in any State, shall 
flee from justice, and be found in any of the United 
States, he shall upon demand of the Governor or Ex- 
ecutive power, of the State from which he fled, be de- 
livered up and removed to the State having jurisdiction 
of his offence. 

Full faith and credit shall be given in each of 
these States to the records, acts and judicial proceed- 



112 Madison's Debates in Federal Convention 

ings of the courts and magistrates of every other 
State. 

Article V. For the more convenient management 
of the general interest of the United States, delegates 
shall be annually appointed in such manner as the 
legislature of each State shall direct, to meet in Con- 
gress on the first Monday in November, in every year, 
with a power reserved to each State, to recall its dele- 
gates, or any of them, at any time within the year, and 
to send others in their stead, for the remainder of the 
year. 

No State shall be represented in Congress by less 
than two, nor by more than seven members; and no 
person shall be capable of being a delegate for more 
than three years in any term of six years; nor shall 
any person, being a delegate, be capable of holding any 
office under the United States, for which he, or another 
for his benefit receives any salary, fees or emolument 
of any kind. 

Each State shall maintain its own delegates in a 
meeting of the States, and while they act as members 
of the committee of the States. 

In determining questions in the United States, in 
Congress assembled, each State shall have one vote. 

Freedom of speech and debate in Congress shall not 
be impeached or questioned in any court, or place out 
of Congress, and the members of Congress shall be 
protected in their persons from arrests and imprison- 
ments, during the time of their going to and from, and 
attendance on Congress, except for treason, felony, or 
breach of the peace. 

Article VI. No State without the consent of the 
United States in Congress assembled, shall send any 
embassy to, or receive any embassy from, or enter into 



And a More Perfect Society of Nations 113 

any conference, agreement, alliance or treaty with any 
king, prince or state ; nor shall any person holding any 
office of profit or trust under the United States, or any 
of them, accept of any present, emolument, office or 
title of any kind whatever from any king, prince or for- 
eign state; nor shall the United States in Congress 
assembled, or any of them, grant any title of nobility. 

No two or more States shall enter into any treaty, 
confederation or alliance whatever between them, with- 
out the consent of the United States in Congress as- 
sembled, specifying accurately the purposes for which 
the same is to be entered into, and how long it shall 
continue. 

No State shall lay any imposts or duties, which may 
interfere with any stipulations in treaties, entered into 
by the United States in Congress assembled, with any 
king, prince or state, in pursuance of any treaties 
already proposed by Congress, to the courts of France 
and Spain. 

No vessels of war shall be kept up in time of peace by 
any State, except such number only, as shall be deemed 
necessary by the United States in Congress assembled, 
for the defence of such State, or its trade; nor shall 
any body of forces be kept up by any State, in time of 
peace, except such number only, as in the judgment of 
the United States, in Congress assembled, shall be 
deemed requisite to garrison the forts necessary for 
the defence of such State; but every State shall always 
keep up a well regulated and disciplined militia, suffi- 
ciently armed and accoutred, and shall provide and con- 
stantly have ready for use, in public stores, a due num- 
ber of field pieces and tents, and a proper quantity of 
arms, ammunition and camp equipage. 

No State shall engage in any war without the con- 



114 Madison s Debates in Federal Convention 

sent of the United States in Congress assembled, un- 
less such State be actually invaded by enemies, or shall 
have received certain advice of a resolution being 
formed by some nation of Indians to invade such 
State, and the danger is so imminent as not to admit 
of a delay, till the United States in Congress assembled 
can be consulted: nor shall any State grant commis- 
sions to any ships or vessels of war, nor letters of 
marque or reprisal, except it be after a declaration of 
war by the United States in Congress assembled, and 
then only against the kingdom or state and the sub- 
jects thereof, against which war has been so declared, 
and under such regulations as shall be established by 
the United States in Congress assembled, unless such 
State be infested by pirates, in which case vessels of 
war may be fitted out for that occasion, and kept so long 
as the danger shall continue, or until the United States 
in Congress assembled shall determine otherwise. 

Article VII. When land-forces are raised by any 
State for the common defence, all officers of or under 
the rank of colonel, shall be appointed by the Legis- 
lature of each State respectively by whom such forces 
shall be raised, or in such manner as such State shall 
direct, and all vacancies shall be filled up by the State 
which first made the appointment. 

Article VIII. All charges of war, and all other 
expenses that shall be incurred for the common defence 
or general welfare, and allowed by the United States 
in Congress assembled, shall be defrayed out of a com- 
mon treasury, which shall be supplied by the several 
States, in proportion to the value of all land within 
each State, granted to or surveyed for any person, 
as such land and the buildings and improvements 
thereon shall be estimated according to such mode as 



And a More Perfect Society of Nations 115 

the United States in Congress assembled, shall from 
time to time direct and appoint. 

The taxes for paying that proportion shall be laid 
and levied by the authority and direction of the Legis- 
latures of the several States within the time agreed upon 
by the United States in Congress assembled. 

Article IX. The United States in Congress as- 
sembled, shall have the sole and exclusive right and 
power of determining on peace and war, except in the 
cases mentioned in the sixth article — of sending and 
receiving ambassadors — entering into treaties and alli- 
ances, provided that no treaty of commerce shall be 
made whereby the legislative power of the respective 
States shall be restrained from imposing such imposts 
and duties on foreigners, as their own people are sub- 
jected to, or from prohibiting the exportation or impor- 
tation of any species of goods or commodities what- 
soever — of establishing rules for deciding in all cases, 
what captures on land or water shall be legal, and in 
what manner prizes taken by land or naval forces in 
the service of the United States shall be divided or 
appropriated — of granting letters of marque and re- 
prisal in times of peace — appointing courts for the 
trial of piracies and felonies committed on the high seas 
and establishing courts for receiving and determining 
finally appeals in all cases of captures, provided that no 
member of Congress shall be appointed a judge of any 
of the said courts. 

The United States in Congress assembled shall also 
be the last resort on appeal in all disputes and differ- 
ences now subsisting or that hereafter may arise be- 
tween two or more States concerning boundary, juris- 
diction or any other cause whatever; which authority 
shall always be exercised in the manner following. 



1 1 6 Madison's Debates in Federal Convention 

Whenever the legislative or executive authority or law- 
ful agent of any State in controversy with another shall 
present a petition to Congress, stating the matter in 
question and praying for a hearing, notice thereof shall 
be given by order of Congress to the legislative or 
executive authority of the other State in controversy, 
and a day assigned for the appearance of the parties 
by their lawful agents, who shall then be directed to 
appoint by joint consent, commissioners or judges to 
constitute a court for hearing and determining the 
matter in question : but if they can not agree, Congress 
shall name three persons out of each of the United 
States, and from the list of such persons each party 
shall alternately strike out one, the petitioners begin- 
ning, until the number shall be reduced to thirteen; and 
from that number not less than seven, nor more than 
nine names as Congress shall direct, shall in the pres- 
ence of Congress be drawn out by lot, and the persons 
whose names shall be so drawn or any five of them, 
shall be commissioners or judges, to hear and finally 
determine the controversy, so always as a major part 
of the judges who shall hear the cause shall agree in 
the determination : and if either party shall neglect to 
attend at the day appointed, without showing reasons, 
which Congress shall judge sufficient, or being present 
shall refuse to strike, the Congress shall proceed to 
nominate three persons out of each State, and the Secre- 
tary of Congress shall strike in behalf of such party 
absent or refusing; and the judgment and sentence of 
the court to be appointed, in the manner before pre- 
scribed, shall be final and conclusive; and if any of 
the parties shall refuse to submit to the authority of 
such court, or to appear or defend their claim or cause, 
the court shall nevertheless proceed to pronounce sen- 



And a More Perfect Society of Nations 117 

tence, or judgment, which shall in like manner be final 
and decisive, the judgment or sentence and other pro- 
ceedings being in either case transmitted to Con- 
gress, and lodged among the acts of Congress for the 
security of the parties concerned: provided that every 
commissioner, before he sits in judgment, shall take an 
oath to be administered by one of the judges of the 
supreme or superior court of the State, where the cause 
shall be tried, " well and truly to hear and determine 
the matter in question, according to the best of his judg- 
ment, without favour, affection or hope of reward:" 
provided also that no State shall be deprived of terri- 
tory for the benefit of the United States. 

All controversies concerning the private right of soil 
claimed under different grants of two or more States, 
whose jurisdiction as they may respect such lands, and 
the States which passed such grants are adjusted, the 
said grants or either of them being at the same time 
claimed to have originated antecedent to such settle- 
ment of jurisdiction, shall on the petition of either 
party to the Congress of the United States, be finally 
determined as near as may be in the same manner as 
is before prescribed for deciding disputes respecting 
territorial jurisdiction between different States. 

The United States in Congress assembled shall also 
have the sole and exclusive right and power of regu- 
lating the alloy and value of coin struck by their own 
authority, or by that of the respective States, — fixing 
the standard of weights and measures throughout the 
United States, — regulating the trade and managing all 
affairs with the Indians, not members of any of the 
States, provided that the legislative right of any State 
within its own limits be not infringed or violated — 
establishing and regulating post-offices from one State 



1 1 8 Madison's Debates in Federal Convention 

to another, throughout all the United States, and exact- 
ing such postage on the papers passing thro' the same 
as may be requisite to defray the expenses of the said 
office — appointing all officers of the land forces, in the 
service of the United States, excepting regimental offi- 
ers — appointing all the officers of the naval forces, and 
commissioning all officers whatever in the service of the 
United States — making rules for the government and 
regulation of the said land and naval forces, and direct- 
ing their operations. 

The United States in Congress assembled shall have 
authority to appoint a committee, to sit in the recess of 
Congress, to be denominated " A Committee of the 
States," and to consist of one delegate from each State; 
and to appoint such other committees and civil officers 
as may be necessary for managing the general affairs 
of the United States under their direction — to appoint 
one of their number to preside, provided that no person 
be allowed to serve in the office of president more than 
one year in any term of three years; to ascertain the 
necessary sums of money to be raised for the ser- 
vice of the United States, and to appropriate and apply 
the same for defraying the public expenses — to borrow 
money, or emit bills on the credit of the United States, 
transmitting every half year to the respective States an 
account of the sums of money so borrowed or emitted, 
— to build and equip a navy — to agree upon the num- 
ber of land forces, and to make requisitions from each 
State for its quota, in proportion to the number of 
white inhabitants in such State ; which requisition shall 
be binding, and thereupon the Legislature of each 
State shall appoint the regimental officers, raise the 
men and cloath, arm and equip them in a soldier like 
manner, at the expense of the United States; and the 



And a More Perfect Society of Nations 119 

officers and men so cloathed, armed and equipped shall 
march to the place appointed, and within the time 
agreed on by the United States in Congress assembled: 
but if the United States in Congress assembled shall, 
on consideration of circumstances, judge proper that 
any State should not raise men, or should raise a 
smaller number than its quota, and that any other 
State should raise a greater number of men than the 
quota thereof, such extra number shall be raised, of- 
ficered, cloathed, armed and equipped in the same man- 
ner as the quota of such State, unless the legislature of 
such State shall judge that such extra number cannot 
be safely spared out of the same, in which case they 
shall raise, officer, cloath, arm and equip as many of 
such extra number as they judge can be safely spared. 
And the officers and men so cloathed, armed and 
equipped, shall march to the place appointed, and 
within the time agreed on by the United States in Con- 
gress assembled. 

The United States in Congress assembled shall never 
engage in a war, nor grant letters of marque and re- 
prisal in time of peace, nor enter into any treaties or 
alliances, nor coin money, nor regulate the value 
thereof, nor ascertain the sums and expenses necessary 
for the defence and welfare of the United States, or 
any of them, nor emit bills, nor borrow money on the 
credit of the United States, nor appropriate money, 
nor agree upon the number of vessels of war, to be built 
or purchased, or the number of land or sea forces to 
be raised, nor appoint a commander in chief of the army 
or navy, unless nine States assent to the same : nor 
shall a question on any other point, except for adjourn- 
ing from day to day be determined, unless by the votes 



120 Madison's Debates in Federal Convention 

of a majority of the United States in Congress as- 
sembled. 

The Congress of the United States shall have power 
to adjourn to any time within the year, and to any 
place within the United States, so that no period of ad- 
journment be for a longer duration than the space of 
six months, and shall publish the journal of their pro- 
ceedings monthly except such parts thereof relating to 
treaties, alliances or military operations, as in their 
judgment require secrecy; and the yeas and nays of the 
delegates of each State on any question shall be en- 
tered on the journal, when it is desired by any dele- 
gate; and the delegates of a State, or any of them, at 
his or their request shall be furnished with a transcript 
of the said journal, except such parts as are above ex- 
cepted, to lay before the Legislatures of the several 
States. 

Article X. The committee of the States, or any nine 
of them, shall be authorized to execute, in the recess of 
Congress, such of the powers of Congress as the 
United States in Congress assembled, by the consent of 
nine States, shall from time to time think expedient 
to vest them with; provided that no power be dele- 
gated to the said committee, for the exercise of which, 
by the articles of confederation, the voice of nine States 
in the Congress of the United States assembled is re- 
quisite. 

Article XI. Canada acceding to this confedera- 
tion, and joining in the measures of the United States, 
shall be admitted into, and entitled to all the advan- 
tages of this Union : but no other colony shall be ad- 
mitted into the same, unless such admission be agreed 
to by nine States. 

Article XII. All bills of credit emitted, monies 



And a More Perfect Society of Nations 121 

borrowed and debts contracted by, or under the author- 
ity of Congress, before the assembling of the United 
States, in pursuance of the present confederation, shall 
be deemed and considered as a charge against the 
United States, for payment and satisfaction whereof 
the said United States, and the public faith are hereby 
solemnly pledged. 

Article XIII. Every State shall abide by the de- 
terminations of the United States in Congress assem- 
bled, on all questions which by this confederation are 
submitted to them. And the articles of this confed- 
eration shall be inviolably observed by every State, 
and the Union shall be perpetual; nor shall any altera- 
tion at any time hereafter be made in any of them; un- 
less such alteration be agreed to in a Congress of the 
United States, and be afterwards confirmed by the 
Legislatures of every State. 

And whereas it hath pleased the Great Governor of 
the world to incline the hearts of the Legislatures we 
respectively represent in Congress, to approve of, and 
to authorize us to ratify the said articles of confeder- 
ation and perpetual union. Know ye that we the under- 
signed delegates, by virtue of the power and authority 
to us given for that purpose, do by these presents, in 
the name and in behalf of our respective constituents, 
fully and entirely ratify and confirm each and every 
of the said articles of confederation and perpetual 
union, and all and singular the matters and things 
therein contained : And we do further solemnly plight 
and engage the faith of our respective constituents, that 
they shall abide by the determinations of the United 
States in Congress assembled, on all questions, which 
by the said confederation are submitted to them. And 
that the articles thereof shall be inviolably observed by 



122 Madison s Debates in Federal Convention 

the States we respectively represent, and that the 
Union shall be perpetual. 

In witness whereof we have hereunto set our hands 
in Congress. Done at Philadelphia in the State of 
Pennsylvania the ninth day of July in the year of our 
Lord one thousand seven hundred and seventy-eight, 
and in the third year of the independence of America. 

On the part & behalf of the State of New Hampshire. 
Josiah Bartlett, John Wentworth, 

Junr., 

August 8th, 1778. 

On the part and behalf of the State of Massachusetts 

Bay. 
John Hancock, Francis Dana, 

Samuel Adams, James Lovell, 

Elbridge Gerry Samuel Holten. 

On the part and behalf of the State of Rhode Island 

and Providence Plantations. 
William Ellery, John Collins. 

Henry Marchant, 

On the part and behalf of the State of Connecticut. 
Roger Sherman, Titus Hosmer, 

Samuel Huntington, Andrew Adams. 
Oliver Wolcott, 

On the part and behalf of the State of New York. 
Jas. Duane, Wm. Duer, 

Fra. Lewis, Gouv. Morris. 

On the part and in behalf of the State of New Jersey, 

Novr. 26, 1778. 
Jno. Witherspoon, Nathl. Scudder. 



And a More Perfect Society of Nations 123 

On the part and behalf of the State of Pennsylvania. 

Robt. Morris, William Clingan, 

Daniel Roberdeau, Joseph Reed, 2 2d July, 
Jona. Bayard Smith, 1778. 

On the part & behalf of the State of Delaware. 

Tho. M'Kean, Feby. 12, Nicholas Van Dyke. 

1779. 
John Dickinson, May 

5th, 1779. 

On the part and behalf of the State of Maryland. 

John Hanson, March 1, Daniel Carroll, Mar. 
1 7 8 1 . 1, 1781. 

On the part and behalf of the State of Virginia. 

Richard Henry Lee, Jno. Harvie, 

John Banister, Francis Lightfoot Lee. 

Thomas Adams, 

On the part and behalf of the State of No. Carolina. 

John Penn, July 21st, Corns. Harnett, 
1778. Jno. Williams. 

On the part and behalf of the State of South Carolina. 

Henry Laurens, Jno. Matthews, 

William Henry Dray- Richd. Hutson, 

ton, Thos. Heyward, Junr. 

On the part & behalf of the State of Georgia. 

Jno. Walton, 24th July, Edwd. Telfair, 
1778. Edwd. Langworthy. 



THE CONSTITUTION OF THE UNITED 
STATES— 1787 x 

We the People of the United States, in Order to 
form a more perfect Union, establish Justice, insure 
domestic Tranquility, provide for the common defence, 
promote the general Welfare, and secure the Blessings 
of Liberty to ourselves and our Posterity, do ordain 
and establish this Constitution for the United States 
of America. 

Article I. 

Section i. All legislative Powers herein granted 
shall be vested in a Congress of the United States, 
which shall consist of a Senate and House of Represen- 
tatives. 

Section 2. (1) The House of Representatives shall 
be composed of Members chosen every second Year 
by the People of the several States, and the Electors in 
each State shall have the Qualifications requisite for 
Electors of the most numerous Branch of the State 
Legislature. 

(2) No Person shall be a Representative who shall 
not have attained the Age of twenty-five Years, and 
been seven Years a Citizen of the United States, and 
who shall not, when elected, be an Inhabitant of that 
State in which he shall be chosen. 

1 The text of the Constitution, and the amendments thereto, are 
taken from the Revised Statutes of the United States, 1878, and 
Senate Document No. 12, 63d Congress, 1st Session. 

The numbers prefixed to the clauses of the Constitution, and here 
placed in parentheses, do not appear in the original text. 



Madison's Debates in Federal Convention 125 

(3) * [Representatives and direct Taxes shall be appor- 
tioned among the several States which may be included 
within this Union, according to their respective Num- 
bers, which shall be determined by adding to the whole 
Number of free Persons, including those bound to 
Service for a Term of Years, and excluding Indians 
not taxed, three fifths of all other Persons.] The 
actual Enumeration shall be made within three Years 
after the first Meeting of the Congress of the United 
States, and within every subsequent Term of ten Years, 
in such Manner as they shall by Law direct. The Num- 
ber of Representatives shall not exceed one for every 
thirty Thousand, but each State shall have at Least 
one Representative; and until such enumeration shall 
be made, the State of New Hampshire shall be entitled 
to chuse three, Massachusetts eight, Rhode-Island and 
Providence Plantations one, Connecticut five, New- 
York six, New Jersey four, Pennsylvania eight, Del- 
aware one, Maryland six, Virginia ten, North Carolina 
five, South Carolina five, and Georgia three. 

(4) When vacancies happen in the Representation 
from any State, the Executive Authority thereof shall 
issue Writs of Election to fill such Vacancies. 

(5) The House of Representatives shall chuse their 
Speaker and other Officers; and shall have the sole 
Power of Impeachment. 

Section 3. [ (1) The Senate of the United States 
shall be composed of two Senators from each State, 
chosen by the Legislature thereof, for six Years; and 
each Senator shall have one Vote.Jf 

* The clause included in brackets is amended by the fourteenth 
amendment, 2d Session. 

t The first paragraph of section three of Article 1, of the Con- 
stitution of the United States, and so much of paragraph two of the 
same section as relates to filling vacancies are amended by the 
seventeenth amendment to the Constitution. 



126 Madison's Debates in Federal Convention 

(2) Immediately after they shall be assembled in Con- 
sequence of the first Election, they shall be divided as 
equally as may be into three Classes. The Seats of the 
Senators of the first Class shall be vacated at the 
Expiration of the second Year, of the second Class at 
the Expiration of the fourth Year, and of the third 
Class at the Expiration of the sixth Year, so that one- 
third may be chosen every second Year; and if Vacan- 
cies happen by Resignation, or otherwise, during the 
Recess of the Legislature of any State, the Executive 
thereof may make temporary Appointments [until the 
next Meeting of the Legislature, which shall then fill 
such Vacancies]. 

(3) n Person shall be a Senator who shall not have 
attained to the Age of thirty Years, and been nine Years 
a Citizen of the United States, and who shall not, 
when elected, be an Inhabitant of that State for which 
he shall be chosen. 

(4) The Vice President of the United States shall be 
President of the Senate, but shall have no Vote, unless 
they be equally divided. 

(5) The Senate shall chuse their other Officers, and 
also a President pro tempore, in the Absence of the 
Vice President, or when he shall exercise the Office of 
President of the United States. 

(6) The Senate shall have the sole Power to try all 
Impeachments. When sitting for that Purpose, they 
shall be on Oath or Affirmation. When the President 
of the United States is tried, the Chief Justice shall 
preside : And no Person shall be convicted without 
the Concurrence of two thirds of the Members present. 

(7) Judgment in Cases of Impeachment shall not 
extend further than to removal from Office, and dis- 
qualification to hold and enjoy any Office of honor, 



And a More Perfect Society of Nations 127 

Trust or Profit under the United States : but the Party 
convicted shall nevertheless be liable and subject to 
Indictment, Trial, Judgment and Punishment, accord- 
ing to Law. 

Section 4. (1) The Times, Places and Manner of 
holding Elections for Senators and Representatives, 
shall be prescribed in each State by the Legislature 
thereof; but the Congress may at any time by Law 
make or alter such Regulations, except as to the Places 
of chusing Senators. 

(2) The Congress shall assemble at least once in every 
Year, and such Meeting shall be on the first Monday in 
December, unless they shall by Law appoint a different 
Day. 

Section 5. (1) Each House shall be the Judge of the 
Elections, Returns and Qualifications of its own Mem- 
bers, and a Majority of each shall constitute a Quorum 
to do Business; but a smaller Number may adjourn 
from day to day, and may be authorized to compel 
the Attendance of absent Members, in such Manner, 
and under such Penalties as each House may 
provide. 

(2) Each House may determine the Rules of its Pro- 
ceedings, punish its Members for disorderly Behaviour, 
and, with the Concurrence of two thirds, expel a Mem- 
ber. 

(3) Each House shall keep a Journal of its Proceed- 
ings, and from time to time publish the same, excepting 
such Parts as may in their Judgment require Secrecy; 
and the Yeas and Nays of the Members of either 
House on any question shall, at the Desire of one fifth 
of those Present, be entered on the Journal. 

(4) Neither House, during the Session of Congress, 
shall, without the consent of the other, adjourn for 



128 Madison s Debates in Federal Convention 

more than three days, nor to any other Place than that 
in which the two Houses shall be sitting. 

Section 6. (1) The Senators and Representatives 
shall receive a Compensation for their Services, to be 
ascertained by Law, and paid out of the Treasury of 
the United States. They shall in all Cases, except 
Treason, Felony and Breach of the Peace, be privi- 
leged from Arrest during their Attendance at the Ses- 
sion of their respective Houses, and in going to and 
returning from the same; and for any Speech or 
Debate in either House, they shall not be questioned in 
any other Place. 

(2) No Senator or Representative shall, during the 
Time for which he was elected, be appointed to any 
civil Office under the Authority of the United States, 
which shall have been created, or the Emoluments 
whereof shall have been encreased during such time; 
and no Person holding any Office under the United 
States, shall be a Member of either House during his 
Continuance in Office. 

Section 7. (1) All Bills for raising Revenue shall 
originate in the House of Representatives; but the 
Senate may propose or concur with Amendments as 
on other Biils. 

(2) Every Bill which shall have passed the House of 
Representatives and the Senate, shall, before it become 
a Law, be presented to the President of the United 
States; If he approve he shall sign it, but if not he shall 
return it, with his Objections to that House in which it 
shall have originated, who shall enter the Objections 
at large on their Journal, and proceed to reconsider it. 
If after such Reconsideration two thirds of that House 
shall agree to pass the Bill, it shall be sent, together 
with the Objections, to the other House, by which it 



And a More Perfect Society of Nations 129 

shall likewise be reconsidered, and if approved by two 
thirds of that House, it shall become a Law. But in 
all such Cases the Votes of both Houses shall be deter- 
mined by Yeas and Nays, and the Names of the Per- 
sons voting for and against the Bill shall be entered on 
the Journal of each House respectively. If any Bill 
shall not be returned by the President within ten Days 
(Sundays excepted) after it shall have been presented 
to him, the Same shall be a Law, in like Manner as if 
he had signed it, unless the Congress by their Adjourn- 
ment prevent its Return, in which Case it shall not be 
a Law. 

(3) Every Order, Resolution, or Vote to which the 
Concurrence of the Senate and House of Representa- 
tives may be necessary (except on a question of 
Adjournment) shall be presented to the President of 
the United States; and before the Same shall take 
Effect, shall be approved by him, or being disapproved 
by him, shall be repassed by two thirds of the Senate 
and House of Representatives, according to the Rules 
and Limitations prescribed in the Case of a Bill. 

Section 8. The Congress shall have Power (1) To 
lay and collect Taxes, Duties, Imposts and Excises, to 
pay the Debts and provide for the common Defence 
and general Welfare of the United States; but all 
Duties, Imposts and Excises shall be uniform through- 
out the United States ; 

(2) To borrow money on the credit of the United 
States ; 

(3) To regulate Commerce with foreign Nations, and 
among the several States, and with the Indian Tribes; 

(4) To establish an uniform Rule of Naturalization, 
and uniform Laws on the subject of Bankruptcies 
throughout the United States; 



130 Madison s Debates in Federal Convention 

(5) To coin Money, regulate the Value thereof, and 
of foreign Coin, and fix the Standard of Weights and 
Measures; 

(6) To provide for the Punishment of counterfeiting 
the Securities and current Coin of the United States; 

(7) To establish Post Offices and post Roads; 

(8) To promote the Progress of Science and useful 
Arts, by securing for limited Times to Authors and 
Inventors the exclusive Right to their respective Writ- 
ings and Discoveries; 

(9) To constitute Tribunals inferior to the supreme 
Court; 

(10) To define and punish Piracies and Felonies com- 
mitted on the high Seas, and Offenses against the Law 
of Nations; 

(11) To declare War, grant Letters of Marque and 
Reprisal, and make Rules concerning Captures on Land 
and Water; 

(12) To raise and support Armies, but no Appropri- 
ation of Money to that Use shall be for a longer Term 
than two Years; 

(13) To provide and maintain a Navy; 

(14) To make Rules for the Government and Regula- 
tion of the land and naval Forces; 

(15) To provide for calling forth the Militia to exe- 
cute the Laws of the Union, suppress Insurrections and 
repel Invasions; 

(16) To provide for organizing, arming, and disciplin- 
ing the Militia, and for governing such Part of them as 
may be employed in the Service of the United States, 
reserving to the States respectively, the Appointment 
of the Officers, and the Authority of training the 
Militia according to the discipline prescribed by Con- 
gress; 



And a More Perfect Society of Nations 131 

(17) To exercise exclusive Legislation in all Cases 
whatsoever, over such District (not exceeding ten 
Miles square) as may, by Cession of particular States, 
and the Acceptance of Congress, become the seat of 
the Government of the United States, and to exercise 
like Authority over all Places purchased by the Consent 
of the Legislature of the State in which the Same shall 
be, for the Erection of Forts, Magazines, Arsenals, 
dock-Yards, and other needful Buildings; — And 

(18) To make all Laws which shall be necessary and 
proper for carrying into Execution the foregoing 
Powers, and all other Powers vested by this Constitu- 
tion in the Government of the United States, or in any 
Department or Officer thereof. 

Section 9. (1) The Migration or Importation of such 
Persons as any of the States now existing shall think 
proper to admit, shall not be prohibited by the Con- 
gress prior to the Year one thousand eight hundred 
and eight, but a tax or duty may be imposed on such 
Importation, not exceeding ten dollars for each Person. 

(2) The Privilege of the Writ of Habeas Corpus 
shall not be suspended, unless when in Cases of Rebel- 
lion or Invasion the public Safety may require it. 

(3) No Bill of Attainder or ex post facto Law shall 
be passed. 

* (4) No Capitation, or other direct, Tax shall be laid, 
unless in Proportion to the Census or Enumeration 
herein before directed to be taken. 

(5) No Tax or Duty shall be laid on Articles exported 
from any State. 

(6) No Preference shall be given by any Regulation 
of Commerce or Revenue to the Ports of one State 
over those of another: nor shall Vessels bound to, or 

* See XVI Amendment. 



132 Madison's Debates in Federal Convention 

from, one State, be obliged to enter, clear, or pay 
Duties in another. 

(7) No Money shall be drawn from the Treasury, but 
in Consequence of Appropriations made by Law; and 
a regular Statement and Account of the Receipts and 
Expenditures of all public Money shall be published 
from time to time. 

(8) No Title of Nobility shall be granted by the 
United States; and no Person holding any Office of 
Profit or Trust under them, shall, without the Consent 
of the Congress, accept of any present, Emolument, 
Office, or Title, of any kind whatever, from any King, 
Prince, or foreign State. 

Section 10. (1) No State shall enter into any Treaty, 
Alliance, or Confederation; grant Letters of Marque 
and Reprisal; coin Money; emit Bills of Credit; make 
any Thing but gold and silver Coin a Tender in Pay- 
ment of Debts; pass any Bill of Attainder, ex post 
facto Law, or Law impairing the Obligation of Con- 
tracts, or grant any Title of Nobility. 

(2) No State shall, without the Consent of the Con- 
gress, lay any Imposts or Duties on Imports or 
Exports, except what may be absolutely necessary for 
executing its inspection Laws : and the net Produce of 
all Duties and Imposts, laid by any State on Imports 
or Exports, shall be for the Use of the Treasury of the 
United States ; and all such Laws shall be subject to the 
Revision and Control of the Congress. 

(3) No State shall, without the Consent of Congress, 
lay any duty of Tonnage, keep Troops, or Ships of War 
in time of Peace, enter into any Agreement or Compact 
with another State, or with a foreign Power, or engage 
in War, unless actually invaded, or in such imminent 
Danger as will not admit of delay. 



And a More Perfect Society of Nations 133 

Article II. 

Section I. (1) The executive Power shall be vested 
in a President of the United States of America. He 
shall hold his Office during the Term of four Years, 
and, together with the Vice President, chosen for the 
same Term, be elected, as follows: 

(2) Each State shall appoint, in such Manner as the 
Legislature thereof may direct, a Number of Electors, 
equal to the whole Number of Senators and Represen- 
tatives to which the State may be entitled in the Con- 
gress : but no Senator or Representative, or Person 
holding an Office of Trust or Profit under the United 
States, shall be appointed an Elector. 

*[The Electors shall meet in their respective States, 
and vote by Ballot for two persons, of whom one at 
least shall not be an Inhabitant of the same State with 
themselves. And they shall make a List of all the Per- 
sons voted for, and of the Number of Votes for each; 
which List they shall sign and certify, and transmit 
sealed to the Seat of the Government of the United 
States, directed to the President of the Senate. The 
President of the Senate shall, in the Presence of the 
Senate and House of Representatives, open all the Cer- 
tificates, and the Votes shall then be counted. The Per- 
son having the greatest Number of Votes shall be the 
President, if such Number be a Majority of the whole 
Number of Electors appointed; and if there be more 
than one who have such Majority, and have an equal 
Number of Votes, then the House of Representatives 
shall immediately chuse by Ballot one of them for Presi- 
dent; and if no Person have a Majority, then from the 
five highest on the List the said House shall in like 

* This clause has been superseded by the twelfth amendment. 



134 Madison's Debates in Federal Convention 

Manner chuse the President. But in chusing the Presi- 
dent, the Votes shall be taken by States, the Represen- 
tation from each State having one Vote; A quorum for 
this Purpose shall consist of a Member or Members 
from two thirds of the States, and a Majority of all the 
States shall be necessary to a Choice. In every Case, 
after the Choice of the President, the Person having the 
greatest Number of Votes of the Electors shall be the 
Vice President. But if there should remain two or 
more who have equal Votes, the Senate shall chuse 
from them by Ballot the Vice President.] 

(3) The Congress may determine the Time of chusing 
the Electors, and the Day on which they shall give 
their Votes; which Day shall be the same throughout 
the United States. 

(4) No Person except a natural born Citizen, or a 
Citizen of the United States, at the time of the Adop- 
tion of this Constitution, shall be eligible to the Office 
of President; neither shall any Person be eligible to 
that Office who shall not have attained to the Age of 
thirty five Years, and been fourteen Years a Resident 
within the United States. 

(5) In Case of the Removal of the President from 
Office, or of his Death, Resignation, or Inability to dis- 
charge the Powers and Duties of the said Office, the 
Same shall devolve on the Vice President, and the 
Congress may by Law provide for the Case of Re- 
moval, Death, Resignation or Inability, both of the 
President and Vice President, declaring what Officer 
shall then act as President, and such Officer shall act 
accordingly, until the Disability be removed, or a Pres- 
ident shall be elected. 

(6) The President shall, at stated Times, receive for 
his Services, a Compensation, which shall neither be 



And a More Perfect Society of Nations 135 

encreased nor diminished during the Period for which 
he shall have been elected, and he shall not receive 
within that Period any other Emolument from the 
United States, or any of them. 

(7) Before he enter on the Execution of his Office, he 
shall take the following Oath or Affirmation: — " I do 
solemly swear (or affirm) that I will faithfully execute 
the Office of President of the United States, and will 
to the best of my Ability, preserve, protect and defend 
the Constitution of the United States." 

Section 2. (1) The President shall be Commander in 
Chief of the Army and Navy of the United States, and 
of the Militia of the several States, when called into 
the actual Service of the United States; he may require 
the Opinion, in writing, of the principal Officer in each 
of the executive Departments, upon any Subject relat- 
ing to the Duties of their respective Offices, and he 
shall have Power to grant Reprieves and Pardons for 
Offences against the United States, except in Cases of 
Impeachment. 

(2) He shall have Power, by and with the Advice and 
Consent of the Senate, to make Treaties, provided two 
thirds of the Senators present concur; and he shall nom- 
inate, and by and with the Advice and Consent of the 
Senate, shall appoint Ambassadors, other public Min- 
isters and Consuls, Judges of the supreme Court, and 
all other Officers of the United States, whose Appoint- 
ments are not herein otherwise provided for, and which 
shall be established by Law: but the Congress may by 
Law vest the Appointment of such inferior Officers, 
as they think proper, in the President alone, in the 
Courts of Law, or in the Heads of Departments. 

(3) The President shall have Power to fill up all 
Vacancies that may happen during the Recess of the 



136 Madison's Debates in Federal Convention 

Senate, by granting Commissions which shall expire at 
the End of their next session. 

Section 3. He shall from time to time give to the 
Congress Information of the State of the Union, and 
recommend to their Consideration such Measures as he 
shall judge necessary and expedient; he may, on extra- 
ordinary Occasions, convene both Houses, or either of 
them, and in Case of Disagreement between them, with 
Respect to the Time of Adjournment, he may adjourn 
them to such Time as he shall think proper; he shall 
receive Ambassadors and other public Ministers; he 
shall take Care that the Laws be faithfully executed, 
and shall Commission all the Officers of the United 
States. 

Section 4. The President, Vice President and all 
civil Officers of the United States, shall be removed 
from Office on Impeachment for, and Conviction of, 
Treason, Bribery, or other high Crimes and Misde- 
meanors. 



Article III. 

Section i. The judicial Power of the United States, 
shall be vested in one supreme Court, and in such infer- 
ior Courts as the Congress may from time to time 
ordain and establish. The Judges, both of the supreme 
and inferior Courts, shall hold their Offices during 
good Behaviour, and shall, at Stated Times, receive for 
their Services, a Compensation, which shall not be 
diminished during their Continuance in Office. 

Section 2. (1) The judicial Power shall extend to all 
Cases, in Law and Equity, arising under this Constitu- 
tion, the Laws of the United States, and Treaties made, 
or which shall be made, under their Authority; — to all 



And a More Perfect Society of Nations 137 

Cases affecting Ambassadors, or other public Ministers 
and Consuls; — to all Cases of admiralty and mari- 
time Jurisdiction; — to Controversies to which the 
United States shall be a Party; — to Controversies 
between two or more States; — between a State and 
Citizens of another State; — between Citizens of differ- 
ent States; — between Citizens of the same State claim- 
ing Lands under Grants of different States, and between 
a State, or the Citizens thereof, and foreign States, 
Citizens or Subjects. 

(2) In all Cases affecting Ambassadors, other public 
Ministers and Consuls, and those in which a State shall 
be Party, the supreme Court shall have original Juris- 
diction. In all the other Cases before mentioned, the 
supreme Court shall have appellate Jurisdiction, both 
as to Law and Fact, with such Exceptions, and under 
such Regulations as the Congress shall make. 

(3) The Trial of all Crimes, except in Cases of 
Impeachment, shall be by Jury; and such Trial shall be 
held in the State where the said Crimes shall have been 
committed; but when not committed within any State, 
the Trial shall be at such Place or Places as the Con- 
gress may by Law have directed. 

Section 3. (1) Treason against the United States, 
shall consist only in levying War against them, or in 
adhering to their Enemies, giving them Aid and Com- 
fort. No Person shall be convicted of Treason unless 
on the Testimony of two Witnesses to the same overt 
Act, or on Confession in open Court. 

(2) The Congress shall have Power to declare the 
Punishment of Treason, but no Attainder of Treason 
shall work Corruption of Blood, or Forfeiture except 
during the Life of the Person attainted. 



138 Madison's Debates in Federal Convention 

Article IV. 

Section i. Full Faith and Credit shall be given in 
each State to the public Acts, Records, and judicial 
Proceedings of every other State. And the Congress 
may by general Laws prescribe the Manner in which 
such Acts, Records and Proceedings shall be proved, 
and the Effect thereof. 

Section 2. (1) The Citizens of each State shall be 
entitled to all Privileges and Immunities of Citizens in 
the several States. 

(2) A Person charged in any State with Treason, 
Felony, or other Crime, who shall flee from Justice, 
and be found in another State, shall on Demand of the 
executive Authority of the State from which he fled, be 
delivered up, to be removed to the State having juris- 
diction of the Crime. 

(si n Person held to Service or Labour in one State, 
under the Laws thereof, escaping into another, shall, 
in Consequence of any Law or Regulation therein, be 
discharged from such Service or Labour, but shall be 
delivered up on Claim of the Party to whom such Ser- 
vice or Labour may be due. 

Section 3. (1) New States may be admitted by the 
Congress into this Union; but no new State shall be 
formed or erected within the Jurisdiction of any other 
State; nor any State be formed by the Junction of 
two or more States, or Parts of States, without the 
Consent of the Legislatures of the States concerned 
as well as of the Congress. 

(2) The Congress shall have Power to dispose of and 
make all needful Rules and Regulations respecting 
the Territory or other Property belonging to the United 
States; and nothing in this Constitution shall be so con- 



And a More Perfect Society of Nations 139 

strued as to Prejudice any Claims of the United States, 
or of any particular State. 

Section 4. The United States shall guarantee to 
every State in this Union a Republican Form of Gov- 
ernment, and shall protect each of them against 
Invasion; and on Application of the Legislature, or of 
the Executive (when the Legislature cannot be con- 
vened) against domestic Violence. 

Article V. 

The Congress, whenever two-thirds of both Houses 
shall deem it necessary, shall propose Amendments to 
this Constitution, or, on the Application of the Legis- 
latures of two thirds of the several States, shall call 
a Convention for proposing Amendments, which, in 
either Case, shall be valid to all Intents and Purposes, 
as Part of this Constitution, when ratified by the Legis- 
latures of three fourths of the several States, or by 
Conventions in three fourths thereof, as the one or the 
other Mode of Ratification may be proposed by the 
Congress; Provided that no Amendment which may 
be made prior to the Year One thousand eight hundred 
and eight shall in any Manner affect the first and fourth 
Clauses in the Ninth Section of the first Article; and 
that no State, without its Consent, shall be deprived 
of it's equal Suffrage in the Senate. 

Article VI. 

(1) All Debts contracted and Engagements entered 
into, before the Adoption of this Constitution, shall 
be as valid against the United States under this Con- 
stitution, as under the Confederation. 

(2) This Constitution, and the Laws of the United 



140 Madison s Debates in Federal Convention 

States which shall be made in Pursuance thereof; and 
all Treaties made, or which shall be made, under the 
Authority of the United States, shall be the supreme 
Law of the Land; and the Judges in every State shall 
be bound thereby, any Thing in the Constitution or 
Laws of any State to the Contrary notwithstanding. 

(3) The Senators and Representatives before men- 
tioned, and the Members of the several State Legisla- 
tures, and all executive and judicial Officers, both of the 
United States and of the several States, shall be bound 
by Oath or Affirmation, to support this Constitution; 
but no religious Test shall ever be required as a Quali- 
fication to any Office or public Trust under the United 
States. 

Article VII. 

The Ratification of the Conventions of nine States, 
shall be sufficient for the Establishment of this Con- 
stitution between the States so ratifying the Same. 

Done in Convention by the Unanimous Consent of 
the States present the Seventeenth Day of September 
in the Year of our Lord one thousand seven hundred 
and Eighty seven, and of the Independence of the 
United States of America the Twelfth. In Witness 
whereof We have hereunto subscribed our Names. 

G?: WASHINGTON 
Presidt and deputy from Virginia 

New Hampshire. 
John Langdon Nicholas Gilman 

Massachusetts. 
Nathaniel Gorham Rufus King 

Connecticut. 
Wm. Saml. Johnson Roger Sherman 



And a More Perfect Society of Nations 141 

New York. 
Alexander Hamilton 

New Jersey. 
Wil: Livingston Wm. Patterson 

David Brearley Jona : Dayton 

Pennsylvania. 
B. Franklin Thomas Mifflin 

Robt. Morris Geo. Clymer 

Thos. Fitzsimons Jared Ingersoll 

James Wilson Gouv Morris 

Delaware. 
Geo : Read Gunning Bedford Jim 

John Dickinson Richard Bassett 

Jaco: Broom 

Maryland. 
James McHenry Dan of St Thos Jeni- 

Danl. Carroll fer 

Virginia. 
John Blair — James Madison Jr. 

North Carolina. 
Wm. Blount Richd Dobbs Spaight, 

Hu Williamson 

South Carolina. 
J. Rutledge Charles Cotesworth 

Charles Pinckney Pinckney 

Pierce Butler 

Georgia. 
William Few Abr Baldwin 

Attest WILLIAM JACKSON Secretary 



Articles in Addition To, and Amendment Of, 
the Constitution of the United States of 
America, Proposed by Congress, and Ratified 
by the Legislatures of the Several States, 
Pursuant to the Fifth Article of the Ori- 
ginal Constitution. 

[Article I.]* 

Congress shall make no law respecting an establish- 
ment of religion, or prohibiting the free exer^e 
thereof; or abridging the freedom of speech, or of the 
press; or the right of the people peaceably to assemble, 
and to petition the Government for a redress of griev- 
ances. 

[Article II.] 

A well regulated Militia, being necessary to the 
security of a free State, the right of the people to keep 
and bear Arms, shall not be infringed. 

* The first ten amendments to the Constitution of the United States 
were proposed to the legislatures of the several States by the First 
Congress, on the 25th of September, 1789. They were ratified by the 
following States, and the notifications of ratification by the governors 
thereof were successively communicated by the President to Congress: 
New Jersey, November 20, 1789; Maryland, December 19, 1789; 
North Carolina, December 22, 1789; South Carolina, January 19, 1790; 
New Hampshire, January 25, 1790; Delaware, January 28, 1790; 
Pennsylvania, March 10, 1790; New York, March 27, 1790; Rhode 
Island, June 15, 1790; Vermont, November 3, 1791, and Virginia, 
December 15, 1791. There is no evidence on the journals of Congress 
that the legislatures of Connecticut, Georgia, and Massachusetts 
ratified them. 



Madison's Debates in Federal Convention 143 

[Article III.] 

No Soldier shall, in time of peace, be quartered in 
any house, without the consent of the Owner, nor in 
time of war, but in a manner to be prescribed by law. 

[Article IV.] 

The right of the people to be secure in their persons, 
houses, papers, and effects, against unreasonable 
searches and seizures, shall not be violated, and no 
Warrants shall issue, but upon probable cause, sup- 
ported by Oath or affirmation, and particularly describ- 
ing the place to be searched, and the persons or things 
to be seized. 

[Article V.] 

No person shall be held to answer for a capital, or 
otherwise infamous crime, unless on a presentment or 
indictment of a Grand Jury, except in cases arising in 
the land or naval forces, or in the Militia, when in 
actual service in time of War or public danger; nor 
shall any person be subject for the same offence to be 
twice put in jeopardy of life or limb; nor shall be 
compelled in any criminal case to be a witness against 
himself, nor be deprived of life, liberty, or property, 
without due process of law; nor shall private property 
be taken for public use, without just compensation. 

[Article VI.] 

In all criminal prosecutions, the accused shall enjoy 
the right to a speedy and public trial, by an impartial 
jury of the State and district wherein the crime shall 
have been committed, which district shall have been 
previously ascertained by law, and to be informed of 



144 Madison's Debates in Federal Convention 

the nature and cause of the accusation; to be confronted 
with the witnesses against him; to have compulsory 
process for obtaining witnesses in his favor, and to 
have the Assistance of Counsel for his defence. 

[Article VII.] 
In suits at common law, where the value in contro- 
versy shall exceed twenty dollars, the right of trial by 
jury shall be preserved, and no fact tried by a jury, 
shall be otherwise re-examined in any Court of the 
United States, than according to the rules of the com- 
mon law. 

[Article VIII. ] 
Excessive bail shall not be required, nor excessive 
fines imposed, nor cruel and unusual punishments 
inflicted. 

[Article IX.] 
The enumeration in the Constitution, of certain 
rights, shall not be construed to deny or disparage 
others retained by the people. 

[Article X.] 
The powers not delegated to the United States by 
the Constitution, nor prohibited by it to the States, are 
reserved to the States respectively, or to the people. 

Article XL* 
The Judicial power of the United States shall not 
be construed to extend to any suit in law or equity, com- 

* The eleventh amendment to the Constitution of the United States 
was proposed to the legislatures of the several States by the Third 
Congress on the 5th of March, 1794; and was declared in a message 
from the President to Congress, dated the 8th of January, 1798, to 
have been ratified by the legislatures of three-fourths of the States. 



And a More Perfect Society of Nations 145 

menced or prosecuted against one of the United States 
by Citizens of another State, or by Citizens or Sub- 
jects of any Foreign State. 

Article XII. * 
The electors shall meet in their respective states and 
vote by ballot for President and Vice-President, one of 
whom, at least, shall not be an inhabitant of the same 
state with themselves; they shall name in their ballots 
the person voted for as President, and in distinct ballots 
the person voted for as Vice-President, and they shall 
make distinct lists of all persons voted for as Presi- 
dent, and of all persons voted for as Vice-President, 
and of the number of votes for each, which lists they 
shall sign and certify, and transmit sealed to the seat 
of the government of the United States, directed to the 
President of the Senate ; — The President of the Senate 
shall, in presence of the Senate and House of Represen- 
tatives, open all the certificates and the votes shall 
then be counted; — The person having the greatest 
number of votes for President, shall be the President, 
if such number be a majority of the whole number of 
Electors appointed; and if no person have such major- 
ity, then from the persons having the highest numbers 
not exceeding three on the list of those voted for as 
President, the House of Representatives shall choose 
immediately, by ballot, the President. But in choosing 
the President, the votes shall be taken by states, the 
representation from each state having one vote; a 

* The twelfth amendment to the Constitution of the United States 
was proposed to the legislatures of the several States by the Eighth 
Congress, on the 12th of December, 1803, in lieu of the original third 
paragraph of the first section of the second article; and was declared 
in a proclamation of the Secretary of State, dated the 25th of Septem- 
ber, 1804, to have been ratified by the legislatures of three-fourths of 
the States. 



146 Madison's Debates in Federal Convention 

quorum for this purpose shall consist of a member or 
members from two-thirds of the states, and a majority 
of all the states shall be necessary to a choice. And 
if the House of Representatives shall not choose a 
President whenever the right of choice shall devolve 
upon them, before the fourth day of March next fol- 
lowing, then the Vice-President shall act as President, 
as in the case of the death or other constitutional dis- 
ability of the President. — The person having the great- 
est number of votes as Vice-President, shall be the 
Vice-President, if such number be a majority of the 
whole number of Electors appointed, and if no person 
have a majority, then from the two highest numbers 
on the list, the Senate shall choose the Vice-President; 
a quorum for the purpose shall consist of two-thirds 
of the whole number of Senators, and a majority of the 
whole number shall be necessary to a choice. But no 
person constitutionally ineligible to the office of Presi- 
dent shall be eligible to that of Vice-President of the 
United States. 

Article XIII.* 

Section i. Neither slavery nor involuntary servi- 
tude, except as a punishment for crime whereof the 
party shall have been duly convicted, shall exist within 
the United States, or any place subject to their juris- 
diction. 

Section 2. Congress shall have power to enforce 
this article by appropriate legislation. 

* The thirteenth amendment to the Constitution of the United States 
was proposed to the legislatures of the several States by the Thirty- 
eighth Congress, on the ist of February, 1865, and was declared, in 
a proclamation of the Secretary of State, dated the 18th of December, 
1865, to have been ratified by the legislatures of twenty-seven of the 
thirty-six States. 



And a More Perfect Society of Nations 147 

Article XIV.* 

Section i. All persons born or naturalized in the 
United States, and subject to the jurisdiction thereof, 
are citizens of the United States and of the State 
wherein they reside. No State shall make or enforce 
any law which shall abridge the privileges or immun- 
ities of citizens of the United States; nor shall any 
State deprive any person of life, liberty, or property, 
without due process of law; nor deny to any person 
within its jurisdiction the equal protection of the laws. 

Section 2. Representatives shall be apportioned 
among the several States according to their respective 
numbers, counting the whole number of persons in each 
State, excluding Indians not taxed. But when the right 
to vote at any election for the choice of electors for 
President and Vice-President of the United States, 
Representatives in Congress, the Executive and Judi- 
cial officers of a State, or the members of the Legisla- 
ture thereof, is denied to any of the male inhabitants of 
such State, being twenty-one years of age, and citizens 
of the United States, or in any way abridged, except for 
participation in rebellion, or other crime, the basis of 
representation therein shall be reduced in the propor- 
tion which the number of such male citizens shall bear 
to the whole number of male citizens twenty-one years 
of age in such State. 

Section 3. No person shall be a Senator or Repre- 
sentative in Congress, or elector of President and Vice- 
President, or hold any office, civil or military, under 

* The fourteenth amendment to the Constitution of the United 
States was proposed to the legislatures of the several States by the 
Thirty-ninth Congress, on the 16th of June, 1866, and was declared, 
in a proclamation of the Secretary of State, dated the 28th of July, 
1868, to have been ratified by the legislatures of thirty of the thirty- 
six States. 



i Madison's Debates in Federal Convention 

t nited States, or under any State, who, having 

previously taken an oath, as a member of Congress, or 
as an officer of the United States, or as a member of 
any State legislature, or as an executive or judicial 
officer of any State, to support the Constitution of the 
United States, shall have engaged in insurrection or 
rebellion against the same, or given aid or comfort 
to the enemies thereof. But Congress may by a vote 
of two-thirds of each House, remove such disability. 

Section 4. The validity of the public debt of the 
United States authorized by law, including debts 
incurred for payment of pensions and bounties for 
services in suppressing insurrection or rebellion, shall 
not be questioned. But neither the United States nor 
any State shall assume or pay any debt or obligation 
incurred in aid of insurrection or rebellion against the 
United States, or any claim for the loss or emanci- 
pation of any slave; but all such debts, obligations and 
claims shall be held illegal and void. 

Section 5. The Congress shall have power to 
enforce, by appropriate legislation, the provisions of 
this article. 

Article XV.* 

Section i. The right of citizens of the United 
States to vote shall not be denied or abridged by the 
United States or by any State on account of race, color, 
or previous conditions of servitude — 

Section 2. The Congress shall have power to 
enforce this article by appropriate legislation. 

* The fifteenth amendment to the Constitution of the United States 
was proposed to the legislatures of the several States by the Fortieth 
Congress on the 27th of February, 1869, and was declared, in a 
proclamation of the Secretary of State, dated March 30, 1870, to have 
been ratified by the legislatures of twenty-nine of the thirty-seven 
States. 



And a More Perfect Society of Nations 149 

Article XVI.* 

The Congress shall have power to lay and collect 
taxes on incomes, from whatever source derived, with- 
out apportionment among the several States, and with- 
out regard to any census or enumeration. 

Article XVII.f 

(1) The Senate of the United States shall be composed 
of two Senators from each State, elected by the people 
thereof, for six years; and each Senator shall have one 
vote. The electors in each State shall have the quali- 
fications requisite for electors of the most numerous 
branch of the State Legislatures. 

(2) When vacancies happen in the representation of 
any State in the Senate, the executive authority of such 
State shall issue writs of election to fill such vacancies : 
Provided, That the legislature of any State may 
empower the executive thereof to make temporary 
appointment until the people fill the vacancies by elec- 
tion as the legislature may direct. 

(3) This amendment shall not be so construed as to 
affect the election or term of any Senator chosen before 
it becomes valid as part of the Constitution. 

*The sixteenth amendment to the Constitution of the United States 
was proposed to the legislatures of the several States by the Sixty-first 
Congress on the 12th of July, 1909, and was declared, in an announce- 
ment by the Secretary of State, dated February 25, 1913, to have 
been ratified by the legislatures of thirty-eight of the forty-eight States. 

t The seventeenth amendment to the Constitution of the United 
States was proposed to the legislatures of the several States by the 
Sixty-second Congress on the 16th day of May, 1912, and was declared, 
in an announcement by the Secretary of State, dated May 31, 1913, 
to have been ratified by the legislatures of thirty-six of the forty-eight 
States. 



r>i